AFSCME v. City of Bangor and John Perry, No. 80-41, affirmed and modified by 
City of Bangor v. AFSCME and MLRB, CV-80-574, Board Order aff'd 449 A.2d 1129
(Me. 1982).


STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                         Case No. 80-41


______________________________________
                                      )
COUNCIL NO. 74, AMERICAN FEDERATION   )
OF STATE, COUNTY and MUNICIPAL        )
EMPLOYEES, AFL-CIO,                   )
                                      )
                       Complainant,   )
                                      )
             v.                       )
                                      )
CITY OF BANGOR,                       )                DECISION AND ORDER
                                      )
            and                       )
                                      )
JOHN PERRY, in his capacity as        )
Personnel Director of the City        )
of Bangor,                            )
                                      )
                       Respondents    )
______________________________________)


     On April 25, 1980, Council No. 74 of the American Federation of State,
County and Municipal Employees, AFL-CIO, (Union) filed a prohibited practices
complaint with the Maine Labor Relations Board (Board).  The complaint alleges
that the City of Bangor and Personnel Director John Perry (City) violated
various subsections of 26 M.R.S.A.  964(1) by discharging certain employees,
by not granting the employees the rights and benefits provided by the parties'
collective bargaining agreement, and by various other actions.  The City filed
a motion to dismiss and an answer to the complaint on May 14, 1980, denying
that it had committed any prohibited practices.

     A pre-hearing conference on the case was held May 27, 1980, Alternate
Chairman Donald W. Webber presiding.  On May 29, 1980, Alternate Chairman
Webber issued a  Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.

     Hearings on the case were held June 20 and July 3, 1980, Alternate
Chairman Gary F. Thorne presiding, with Employer Representative Don R.
Ziegenbein and Alternate Employee Representative Harold S. Noddin.  The Union
was represented by Stephen P. Sunenblick, Esq., and the City by Malcolm E.
Morrell, Jr., Esq.  Full opportunity was given to adduce evidence and to
examine and cross-examine witnesses.


                                 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

     Upon review of the entire record, the Board finds:

          1.  The Union is a bargaining agent within the meaning of
              26 M.R.S.A.  968(5)(B) for a bargaining unit of Oper-
              ations and Maintenance Division employees in the Bangor
              Public Services Department.  The City of Bangor and

                                     -1-
______________________________________________________________________________


              Personnel Director John Perry are public employers as
              defined in 26 M.R.S.A.  962(7).

          2.  The Union was recognized by the City as the bargaining
              agent for the operations and Maintenance Division unit
              a number of years ago.  A number of collective bargaining
              agreements have been negotiated over the years by the
              Union and the City for the bargaining unit.

          3.  In March, 1979, representatives of the Union and the
              City executed a collective bargaining agreement to be
              effective from March 2, 1979 to December 31, 1980.
              Article 17(5) of the agreement provides:

                "Upon the anniversary date of the employee's
                 employment or his most recent promotion, each
                 employee shall be eligible to be advanced to
                 the next step in his rate range.  Progression
                 from one step to the next step, as outlined in
                 Appendix "A," shall not be automatic but based
                 on a performance rating and a recommendation
                 from the Operation Maintenance Director.  A
                 satisfactory level of performance by the
                 employee is sufficient to warrant a step increase."

              Appendices A and B attached to the agreement set forth the
              salary scales for the various job classifications included
              in the bargaining unit.  Appendix A, which contains hourly
              wage rates effective from January 1, 1979 to December 31,
              1979, provides the following 5 salary steps for the "Laborers"
              job title:

                     A       B       C       D        E

                   3.96    4.08    4.22    4.34    4.51

              Appendix B, setting forth the wage rates effective January 1,
              1980, provides the following scale for Laborers:

                     A       B       C       D        E

                   4.29    4.4i    4.55    4.67     4.84

          4.  Article 33(2) of the agreement provides:

                "2.  The parties acknowledge that, during the
                 negotiations which resulted in this agreement,
                 each had the unlimited right and opportunity to
                 make demands and proposals with respect to any
                 bargaining, and that the understandings and agree-
                 ments arrived at by the parties after the exercise
                 of that right and opportunity are set forth in this
                 agreement.  Therefore the City and the Union, for
                 the duration of this agreement, each voluntarily
                 and unqualifiedly waives the right, and each agrees
                 that the other shall not be obligated, to negotiate
                 with respect to any subject or matter referred to,
                 or covered in this agreement, even though such sub-
                 jects or matters may have been within the knowledge
                 or contemplation of either or both of the parties
                 at the time they negotiated or signed this agreement."

          5.  At some undetermined point in the past, the City started
              hiring employees for a "Seasonal Laborer" job classification
              for employment in the Operations and Maintenance Division.
              For example, in 1974 thirty-four persons were hired as
              Seasonal Laborers.  The Seasonal Laborers did the same jobs
              performed by the Laborers in the bargaining unit, and were
              paid the minimum wage, with no fringe benefits.  The Laborers
              were paid according to the salary scales and received the

                                     -2-
______________________________________________________________________________


              fringe benefits provided in the collective bargaining
              agreements.

          6.  By 1976, it was becoming apparent that at least some of
              the Seasonal Laborers were not being hired on a temporary
              or seasonal basis, but were being hired throughout the
              year on a full-time, permanent, on-going basis.  Eight
              of the 23 Seasonal Laborers hired in 1976 worked more
              than 6 months.  At the same time, the number of full-
              time, permanent workers in the bargaining unit was
              declining, from nearly 90 employees in the 1974-76
              period to approximately 74 employees in the 1977-78
              period.

          7.  On October 27, 1978, the Union filed a petition for unit
              clarification with the Board, alleging that those Seasonal
              Laborers who were not employed on a temporary or seasonal
              basis should be included In the Operations and Maintenance
              Division bargaining unit.  A Board hearing examiner denied
              the petition, ruling that while some Seasonal Laborers
              were being employed to perform bargaining unit work on a
              permanent, on-going basis, the Union had failed to show
              sufficient changed circumstances as required by 26 M.R.S.A.
               966(3).

          8.  The Union appealed the hearing examiner's decision to the
              Board.  On October 17, 1979, the Board issued a decision
              in Case No. 79-A-02, finding that the Union had shown
              sufficient changed circumstances--that starting in 1976
              some of the Seasonal Laborers were being employed more
              than 6 months throughout the four seasons of the year--
              to warrant modification of the existing unit.  The Board
              accordingly modified the hearing examiner's determination,
              ordering that Seasonal Laborers "who are in fact hired on
              a permanent basis must henceforth be considered part of
              the unit when they exceed 6 months of employment, as
              either 'Laborers' or as whatever other existing job
              classification is most appropriate."  Both the City and
              the Union received their copies of the Board's order on
              Friday, October 19, 1979.

          9.  On October 19, 1979, Randy Henderson was fired from his
              position as a Seasonal Laborer at the City cemetery.
              Henderson was first hired as a Seasonal Laborer on
              January 24, 1979.  He worked during the winter season,
              and was terminated from his position on March 23, 1979.
              He was hired again as a Seasonal Laborer on April 9, 1979,
              working until he was fired on October 19, or for a con-
              tinuous period of 6 months and 10 days.  Henderson was
              not told when he was hired on April 9th that he would be
              working only at the cemetery, or that he would be employed
              just for the cemetery season.

         10.  The Monday after being fired, Henderson went to the Per-
              sonnel Director's office to find out why he had been fired.
              Perry said that the Union had taken the position that Seasonal
              Laborers who worked more than 6 months would have to be laid
              off if no permanent positions were available.  Perry added
              that as a result of the Board's decision in the unit clari-
              fication case, the City would no longer be employing Seasonal
              Laborers, but that Henderson would be given preference in
              future hiring by the City.  Perry did not say during this
              conversation that Henderson had been fired because the
              cemetery season was over.

         11.  In March, 1980, Henderson applied for a job in the City
              cemetery.  He talked to both Perry and the foreman at the

                                     -3-
______________________________________________________________________________


              cemetery about the job, asking Perry whether the labor
              dispute would have any effect on whether he got the job.
              Perry indicated that it didn't look good.  The foreman
              said he would check on Henderson's application, telling
              Henderson to come back in a few days.  When Henderson
              returned, the foreman said that he had been told by the
              City not to hire any of his old crew back, but instead
              to hire a whole new crew.  At least 6 persons subsequently
              were hired to work in the cemetery, with the first of the
              6 being hired on April 21, 1980.

         12.  Shortly after the parties received the Board's decision
              in Case No. 79-A-02, Ross Ferrell, the Union's field
              representative, spoke to Perry about the decision.
              Perry mentioned the possibility that some of the Seasonal
              Laborers might be laid off, but did not tell Ferrell any-
              thing definite about what the City would do in light of the
              Board's order.  Several days later Ferrell called Perry,
              asking that Perry let Ferrell know what the City was going
              to do before any action was taken.

         13.  On October 26, 1979, Perry fired 12 to 14 of the remaining
              Seasonal Laborers at a meeting held after work.  Ferrell
              was not contacted by the City prior to this meeting.  Perry
              told the employees assembled at the meeting that as a result
              of the Board's decision in the unit clarification case, the
              City was no longer in the Seasonal Laborer "business."
              Perry also stated that the City was considering 4 options
              to the Seasonal Laborer system, and that the fired workers
              would be given preference if an option calling for the
              hiring of additional employees was implemented.  In response
              to a question from one of the workers, Perry stated that if
              the Union had not filed its petition for unit clarification,
              the Seasonal Laborers probably would still have their jobs.
              Among the Seasonal Laborers fired on October 26th were
              Jeffrey Bragg, Lawrence Prescott, Allen Standley, and
              Emery Strout.  Ferrell learned of the firings on October 26th,
              shortly after the meeting, when Prescott and another Seasonal
              Laborer told him that they had been fired.

         14.  The City's practice is to pay employees who attend meetings
              after work their salary for the amount of time spent at the
              meeting.  None of the Seasonal Laborers were paid for the
              approximately 20 minutes they spent at the October 26th
              meeting, however.

         15.  Shortly after the October 26th meeting, Bragg and Strout,
              both of whom had over six consecutive months of employment
              as Seasonal Laborers as of October 26, 1979, were hired by
              the City as Laborers in the Operations and Maintenance
              Division.  Both employees were placed on step "A" of the
              salary scale for Laborers, and both were placed at the
              bottom of the seniority list, with their date of per-
              manent hire being recorded as October 30, 1979.  Bragg
              had been hired as a Seasonal Laborer on April 19, 1977,
              working without break in employment for the City until
              October 26, 1979.  Strout had been continously employed
              as a Seasonal Laborer from June 12, 1978.  On January 29,
              1980, Bragg and Strout and approximately 12 other workers
              in the bargaining unit were laid off, according to the
              inverse seniority, due to lack of work.  These employees
              were all recalled to work on April 7, 1980.

         16.  Neither Prescott nor Standley were immediately rehired
              by the City after being fired on October 26th.  Prescott
              had been hired as a Seasonal Laborer on November 14, 1978.
              He worked during the 1978-79 winter, and was laid off on

                                     -4-
______________________________________________________________________________


              March 23, 1979.  He was hired again as a Seasonal Laborer
              on May 1, 1979, and worked continuously until October 26th.
              Thus, Prescott worked as a Seasonal Laborer for more than
              10 months during the period of less than 12 months from
              November 14, 1978 to October 26, 1979.

         17.  Standley was hired as a Seasonal Laborer on February 1,
              1979, and was laid off on March 23, 1979.  He was rehired
              as a Seasonal Laborer on May 1, 1979, and worked contin-
              uously until October 26th.  Standley thus worked as a
              Seasonal Laborer for about 7 1/2 months during the 9-month
              period from February 1, 1979 to October 26, 1979.  On
              November 26, 1979, Standley was hired as an Automotive
              Serviceman at the City's Motor Pool at a salary of $3.99
              per hour.  He resigned from this position on January 28,
              1980.

         18.  Prior to October, 1979, other Seasonal Laborers had been
              fired by Perry for trying to become members of the bar-
              gaining unit.  In September, 1978, the Union filed a
              grievance asserting that Seasonal Laborers John Jewell
              and Donald McKenzie were entitled to receive the wages
              and fringe benefits provided in the collective bargaining
              agreement then in effect.  Perry told Ferrell that If the
              grievance was pursued, Jewell and McKenzie would be fired.
              Ferrell refused to drop the grievance, and on October 13,
              1978 Perry fired Jewell, McKenzie, and a third Seasonal
              Laborer because Perry was "fed up" with the Union filing
              grievances on behalf of the Seasonal Laborers.  After
              considering his action, Perry rehired the three dis-
              charged workers on October 30, 1978.  The Union also
              grieved the dismissal of the 3 employees, and on April 19,
              1979, the Board of Arbitration denied the employees'
              grievances on the ground that the grievances were non-
              arbitrable.

         19.  Jewell was hired as a Seasonal Laborer on November 17,
              1977.  On November 6, 1978, he was hired as a temporary
              Stationary Fireman at the City's steam plant, working
              throughout the winter until being laid off on April 21,
              1979.  On April 27, 1979 Jewell was told to report to
              his former position as a Seasonal Laborer.  He did not
              report for work, and has not subsequently been employed
              by the City.

         20.  McKenzie was hired on September 20, 1976.  He worked
              continuously as a Seasonal Laborer, except for the two
              weeks in October, 1978, when he was fired, until
              October 15, 1979, when he was hired as a Laborer in
              the Operations and Maintenance Division.


                                  DECISION

                           I. THE MOTION TO DISMISS

     Pending before us is the City's motion to dismiss, which moves that all
prohibited practices alleged in the complaint to have occurred prior to
October 25, 1979 be dismissed.  Title 26 M.R.S.A.  968(5)(B) provides in
pertinent part that "no hearing shall be held based upon any alleged pro-
hibited practice occurring more than 6 months prior to the filing of the
complaint."  Since the Union's complaint was filed with the Executive Director
on April 25, 1980, the City's position that we cannot decide any alleged
prohibited practices which occurred prior to October 25, 1979 (6 months prior
to April 25, 1980) is correct.  The City's motion to dismiss

                                     -5-
______________________________________________________________________________


all such allegations in the complaint, including all allegations involving
Jewell and McKenzie, is granted.

     It bears noting, however, that all evidence regarding the past events is
admissible for purposes of providing background information.  The law regard-
ing the admissibility of past events is well-settled: where occurrences
within the six-month limitations period in and of themselves may constitute
prohibited practices, the "past events may be utilized to shed light on the
true character of matters occurring within the limitations period."
Machinists Local Lodge No. 1424 v. NLRB, 362 U.S. 411, 4i6 (1960).[fn]1
Since some occurrences within the six-month period may in and of themselves
constitute prohibited practice--i.e., the events on October 26, 1979 and
thereafter--evidence regarding events occurring outside the limitations period
is admissible.  Thus, while we have dismissed the allegations that the past
events constitute prohibited practices, we will consider whether these past
events shed light on the prohibited practices alleged to have occurred within
the limitations period.


                        II.  THE TIMELY ALLEGATIONS

     There are several allegations of prohibited practices occurring subse-
quent to October 25, 1979:  1) the City violated 26 M.R.S.A.  964(1)(A) and
(B) on October 26, 1979 by firing those Seasonal Laborers who were public
employees, 2) the City violated  964(1)(A) and (B) on October 26, 1979 and
thereafter by not treating the Seasonal Laborers who were public employees as
members of the bargaining unit, 3) the City violated  964(1)(E) by uni-
laterally changing public employees' wages, hours and working conditions on
October 26th without bargaining with the Union, and 4) the City violated
 964(1)(A) and (B) by refusing to hire Randy Henderson for a cemetery job in
March, 1980.[fn]2  We find that all these alleged violations have merit, and
order remedies necessary to effectuate the policies of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A.  961, et seq. (Act).

1.  The Status of Prescott and Standley.

     The Union contends that four of the Seasonal Laborers fired October 26,
1979--Jeffrey Bragg, Lawrence Prescott, Allen Standley and Emery Strout--were
public employees at the time of the firings.  The City in effect concedes
that Bragg and Strout both were public employees, but urges that neither
Prescott nor Standley were public employees because neither had served 6
consecutive months as a City employee.

     We find that Prescott and Standley both were public employees as defined
in 26 M.R.S.A.  962(6) as of October 26th.  Prescott worked as a Seasonal
Laborer from November 14, 1978 to March 23, 1979, and from May 1, 1979 to
October 26, 1979,
_______________

     1  The limitations period contained in Section 968(5)(B) is analogous to
Section 10(b) of the National Labor Relations Act, 29 U.S.C.A.  160(b).  See
Teamsters Local 48 v. City of Waterville, MLRB No. 80-14 at 3 (April 23,
1980).

     2  The Union also alleges that the City violated Sections 964(1)(B) and
(C) by blaming the Union for the firings.  While Perry's October 26th state-
ment regarding the Union's filing of the unit clarification petition consti-
tutes evidence that the employees were fired due to their union involvement,
the statement by itself does not amount to interference with employee rights
or interference with the Union in violation of Sections 964(1)(B) or (C).
We hereby dismiss this allegation.

                                     -6-
______________________________________________________________________________


for a total of over 10 months employment during a period of approximately 11
months and 2 weeks.  Standley worked from February 1, 1979 to March 23, 1979,
and from May 1, 1979 to October 26th, or for about 7 1/2 months during a
period of less than 9 months.  Both employees thus worked more than 6 months
as Seasonal Laborers within one-year periods.[fn]3

     We find nothing in Section 962(6)(F) or any other provision of the Act
which requires an employee to work 6 consecutive months before being entitled
to the rights and protections provided by the statute.  The purpose of Section
962(6)(F) is to allow the public employer 6 months in which to determine
whether the employee is suited for the job, during which time the employer
can discharge the employee or unilaterally change his/her wages, hours and
working conditions without being subject to the terms of the Act.  Since both
Prescott and Standley worked over 6 months as Seasonal Laborers, the purpose
as well as the literal language of Section 962(6)(F) is satisfied.  To hold
that these employees were not public employees would emasculate the Act, for
there likely are many employees who work a majority of the months of the
year in the same position, yet do not have 6 consecutive months of employment.
We believe that the Act is intended to apply to such employees.

     Prescott and Standley also were public employees because they would have
had 6 consecutive months of employment had they not been fired by the City on
October 26th.  If each had worked one more week, both would have worked 6
consecutive months.  Thus, were it not for the October 26th firings, which we
determine in this decision to have been unlawful, both employees would have
been employed for the consecutive period which the City urges is required.
Because the City's unlawful firings prevented Prescott and Standley from
acquiring 6 months of consecutive employment, we would find the two to be
public employees even if they had not on October 26th already been employed
for more than 6 months.

     In Case No. 79-A-02, we determined that at least some of the Seasonal
Laborers were not "seasonal" employees within the meaning of Section 962(6)(G)
because they were employed on a year-round basis, performing the same jobs as
Laborers during most or all of the seasons of the year.  Prescott and Standley
are examples of this type of employee, both having worked as laborers during
the seasons, with the exception of the month of April, which occurred during
their terms of employment.  Thus, as determined in Case No. 79-A-02, Prescott
and Standley were not Section 962(6)(G) "seasonal" employees.  They were as
of October 26, 1979 public employees.

2.  The October 26th firings.

     The City violated Sections 964(1)(A) and (B) on October 26, 1979 when it
fired Bragg, Prescott, Standley and Strout.  The principal is well-established
that a discharge violates Section 964(1)(A) and (B) "if partially motivated by
the employee's protected activity."  NLRB v. Ayer Lar Sanitarium, 436 F.2d 45,
50 (9th Cir. 1970); see also NLRB v. Eagle Material Handling, Inc., 558 F.2d
160, 169 (3rd Cir. 1977);
_______________

     3  It does not matter, for purposes of determining the employees' status,
whether Prescott and Standley were "permanently" discharged on March 23, 1979,
or merely laid off subject to recall.  The important point is that both were
re-employed as Seasonal Laborers shortly after being terminated on March 23rd.

                                     -7-
______________________________________________________________________________


Baker Bus Service v. Maine Labor Relations Board, No. CV 80-157 (Me.  Super.
Ct. Sept. 4, 1980).[fn]4

     We think it plain that the discharges were entirely motivated by the
employees' efforts to be included in the bargaining unit.  The Seasonal
Laborers who had over 6 months of employment had since September, 1978, when
the Jewell-McKenzie grievance was filed, attempted to secure the wages and
benefits accorded members of the unit.  In October, 1978, the Union filed its
petition for unit clarification, seeking to have the Seasonal Laborers with 6
months tenure included in the unit.  All of these organizational and repre-
sentational activities are protected by 26 M.R.S.A.  963.

     That the workers were fired due to their protected activities is con-
firmed by Perry's comments to the employees at the October 26th meeting.
Perry told the employees that because of the Board's decision in the unit
clarification case, which ordered that permanent Seasonal Laborers with 6
months of employment be treated as members of the bargaining unit, the City
was getting out of the Seasonal Laborer "business."  In response to a question
by one of the employees, Perry stated that if the Union had not filed the
petition for unit clarification, the Seasonal Laborers probably would still
have their jobs.  Perry's comments, then, are direct evidence that the City
fired the Seasonal Laborers because of the employees' efforts to become
members of the bargaining unit.  We will order remedies necessary to make
the unlawfully discharged employees whole.

3.  Failure to treat the Seasonal Laborers as member of the unit.

     The City also violated Sections 964(1)(A) and (B) when it failed to treat
Bragg, Prescott, Standley and Strout as members of the Operations and Main-
tenance Division unit.  As of October 19, 1979, when the City received our
order in Case No. 79-A-02, the City was required to treat the Seasonal
Laborers hired on a permanent basis as members of the unit when the employees
exceeded 6 months of employment.  This the City did not do.  Instead, the
employees were fired on October 26th.

     Moreover, when Bragg and Strout were rehired on October 30th, they did
not receive the full benefits and rights accorded to other members of the
unit.  Both were placed at the initial step of the salary scale for Laborers,
although, according to Article 17(5) of the contract, they were eligible upon
the anniversary date of their employment to be advanced to the next step of
the salary scale.  Since Bragg had been employed continuously since April 19,
1977, he was eligible, subject to a performance rating and a recommendation
from the Operations Maintenance Director, to be placed at step "C" of the
salary scale for Laborers.  Strout, employed since June 12, 1978, was eligible
for the wage rate at step "B" of this scale.  Neither employee's performance
was evaluated by the City in order to determine whether the employees were
eligible for the higher salary rates, however.  In addition, both Bragg and
Strout were placed at the bottom of the seniority list, with their date of
permanent hire being recorded as October 30, 1979.  This was not the correct
placement of these employees since, as previously noted, their dates of
permanent hire were April 19, 1977 and June 12, 1978, respectively.  As for
Prescott and Standley, neither were even immediately rehired by the City.
_______________

     4  Sections 964(1)(A) and (B) are analogous to Sections 8(a)(1) and (3)
of the National Labor Relations Act, 29 U.S.C.A.  158(a)(1) and (3).

                                     -8-
______________________________________________________________________________


     The City's failure to treat the 4 employees as full-fledged members of
the bargaining unit interfered with and restrained the employees in the
exercise of their Section 963 rights.  The employees were fired, and Bragg and
Strout when they were rehired were not given the full rights of other members
of the unit, because of their protected union activity. The failure to accord
the 4 employees the same working conditions, rights and benefits provided the
other members of the unit was a form of retaliation against the employees for
their union activities, in violation of Section 964(1)(A).  See, e.g.,
Walgreen Co. v. NLRB, 509 F.2d 1014, 1016-1017 (7th Cir. 1975); Teamsters
Local 48 v. Town of Oakland, MLRB No. 78-30 at 3-4 (Aug. 24, 1978).

     The failure to treat the employees as members of the unit also amounted
to discrimination in regard to terms and conditions of employment, in viola-
tion of Section 964(1)(B).  The City's conduct was both motivated by anti-
union animus and was inherently destructive of important employee rights.
See, e.g., NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967);
Teamsters Local 48 v. Town of Oakland, supra.  Remedies necessary to restore
the status quo will be ordered.

     This allegation regarding the treatment of the 4 employees was timely
filed because the Union did not know how the City would treat the employees
until October 26th and thereafter.  As of October 19, 1979, both the City and
the Union knew that permanent Seasonal Laborers who worked more than 6 months
were entitled to all the rights and benefits granted to members of the bar-
gaining unit.  Several days later, Ferrell, the Union representative, asked
Perry to let him know what the City was going to do before any action was
taken.  Ferrell was not given advance notice about the October 26th firings,
however, learning of the firings from the employees after the fact.  Since
Ferrell learned that the City would not be treating the employees as members
of the unit on October 26th, the 26th is the date upon which the Section
968(5)(B) limitations period commenced running.

4.  The failure to bargain.

     The general principle is well-established that an employer may not change
an employee's wages, hours and working conditions without negotiating such
changes with the employee's bargaining agent.  See, e.g., State v. Maine
Labor Relations Board, 413 A.2d 510, 514-515 (Me. 1980).  As of October 19,
1979, Bragg, Prescott, Standley and Strout were members of the bargaining
unit, and as such were represented by the Union for purposes of collective
bargaining.  The Union was not notified before the employees were fired on
October 26th, however, and no bargaining occurred over the effects of the
firings.

     The City violated Section 964(1)(E) by failing to notify and bargain
with the Union before firing the employees.  The effect of a discharge (i.e.,
regarding severance pay, vacation pay, insurance, re-call, transfer to another
department, etc.) is a mandatory subject of bargaining.  See, e.g., NLRB v.
Allis-Chalmers Corp., 601 F.2d 870, 874-875 (5th Cir. 1979).  The Union did
not waive the right to bargain over the effects of the firings by entering
into Article 33(2) of the contract.  In that Article the parties waived the
right to negotiate only as to "any subject

                                     -9-
______________________________________________________________________________


or matter referred to, or covered in this agreement."  See Finding of Fact No.
4.  While Article 20(2) of the agreement deals with certain matters regarding
discharges, no provision in the contract refers to or covers the effects of
discharges.  Since the Union did not clearly and unmistakably waive the right
to bargain over the effects of the discharges, the City was obligated by
Section 965(1) to notify and bargain with the Union before discharging the
employees.  See, e.g., NLRB v. Auto Crane Co., 536 F.2d 310, 312 (10th Cir.
1976).

5.  The refusal to hire Henderson.

     On October 19, 1979, Perry fired Henderson from his position as a
Seasonal Laborer at the City cemetery.  Subsequently, Perry told Henderson he
had been fired because, due to the Board's decision in the unit clarification
case, the City would no longer be employing Seasonal Laborers.  Perry also
said that Henderson would be given preference in future hiring by the City.
At no point did Perry tell Henderson that he had been fired because the
cemetery season was over.[fn]5  As of October 19th, Henderson had been
employed for more than 6 consecutive months and was a public employee.

     In March, 1980, Henderson applied for a job in the City cemetery.  He
asked Perry whether the labor dispute would have any effect on whether he got
a job, with Perry responding that "it didn't look good."  Several days later,
after checking with the City about Henderson's application, the cemetery
foreman told Henderson that he had been instructed by the City not to hire
any of the old crew, but to hire instead a whole new crew.  At least 6 persons
subsequently were hired to work in the cemetery.

     The City's refusal to hire Henderson in March, 1980, violated Section
964(1)(A) and (B).  The City knew that if Henderson was hired, he would
probably have to be treated as a member of the unit, since he already had
more than 6 consecutive months of employment.  As previously noted, this
result had been achieved as a result of protected union activity.  Moreover,
Perry indicated to Henderson in March that because of this union activity,
Henderson's chances of getting a job "didn't look good."  That Henderson was
not hired because of the union activity that had taken place is confirmed by
the fact that he was fired on October 19th, the very day that the City
received our decision in Case No. 79-A-02, because the Union had succeeded
in including employees with Henderson's status in the bargaining unit.  In
short, we think Henderson was not hired because of the City's desire to keep
Henderson out of the unit and its general anti-union animus.  See, e.g., NLRB
v. J. S. Alberici Constructions Co., Inc., 591 F.2d 463, 468 (8th Cir. 1979).
_______________

     5  We do not credit Perry's testimony that Henderson was fircd simply
because the cemetery season was over.  Henderson had worked during the prior
winter months, was never told that he was being employed just for the cemetery
season, and was never told that he was being discharged because the cemetery
season was over.  We therefore regard Perry's testimony on this point as
pretext.  In any event, the Union's allegation that the October 19th firing
of Henderson was unlawful is time-barred by Section 968(5)(B).

                                    -10-
______________________________________________________________________________


                              III.  REMEDIES

     Upon finding that a party has engaged in a prohibited practice, we are
directed by Section 968(5)(C) to order that party "to cease and desist from
such prohibited practice and to take such affirmative action, including rein-
statement of employees with or without back pay, as will effectuate the
policies of this chapter."  A properly designed remedial order seeks "a
restoration of the situation, as nearly as possible, to that which would have
obtained" but for the prohibited 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).

     We accordingly will order the City to cease and desist from engaging in
the 4 prohibited practices which it has committed, and to post a notice of
its violations on employee bulletin boards.  We also will order that the City
offer reinstatement to Prescott and Standley to the Laborer jobs which they
held on October 26, 1979, or to substantially equivalent employment if these
jobs no longer exist, and make these employees, along with Bragg and Strout,
whole for any loss of earnings and other benefits caused by the City's unlaw-
ful actions.  We found that the City committed three prohibited practices
involving Bragg, Prescott, Standley and Strout, and we would order the above
affirmative action, which is necessary to effectuate the policies of the Act,
for any one of these violations.  We will also order that Henderson be offered
reinstatement and made whole as of April 21, 1980, the date upon which the
first cemetery worker was hired.

     Back pay for the 5 employees is to be computed in the manner prescribed
in F. W. Woolworth Co., 90 NLRB 289 (1950).  Loss of pay thus is to be com-
puted on the basis of each separate calendar quarter or portion thereof during
the period from the City's unlawful actions to the dates of proper offers of
reinstatement to Prescott, Standley and Henderson, and proper placement of
Bragg and Strout at the salary rates and benefit levels to which they are
entitled.  The quarterly periods shall begin with the first day of January,
April, July, and October.  Loss of pay is to be determined by deducting from
a sum equal to that which each worker should have earned for each such quarter
or portion thereof, the net earnings, if any, from other employment during
that period.  Net earnings means earnings less expenses, such as for transpor-
tation and room and board, incurred by the employees in connection with
obtaining other work and working elsewhere than for the City during the
quarters in question.  Earnings in one particular quarter shall have no
effect on the back pay liability for any other quarter.  The amount of back
pay due Bragg, Prescott, Standley and Strout shall include the approximately
20 minutes which each spent at the October 26th meeting after work.

     Interest on the back pay is to be computed as prescribed in Florida Steel
Corp., 231 NLRB 651 (1977); see also NLRB v. George E. Light Board Storage,
Inc., 373 F.2d 762, 766 (5th Cir. 1967).  Thus, interest is to accrue
commencing with the last day of each calendar quarter of the back pay period
on the total amount then due and owing at the adjusted prime interest rate
then in effect, and continuing at such rate, as modified from time to time by
the Secretary of the Treasury, until the City has complied with this order.
From October 26, 1979 to January 31, 1980, the

                                    -11-
______________________________________________________________________________


adjusted prime interest rate was 6%.  The rate from February 1, 1980 to the
present has been 12%.

     Each employee is to be made whole at the wage rates and in accordance
with the benefits provided for Laborers in the collective bargaining agree-
ment.  This is necessary because on October 26, 1979 Bragg, Prescott, Standley
and Strout were performing the work of Laborers and were entitled to the
salary and benefits given to Laborers under the contract.  Similarly, if
Henderson had not unlawfully been denied employment in March, 1980, he would
have been entitled to the wages and benefits provided in the agreement when
he commenced work in April, 1980.  If the parties execute a successor collec-
tive bargaining agreement before the City complies with this order, the wages
and benefits for Laborers in the successor agreement shall be applicable as
of the effective date of the new contract.

     Back pay and benefits due are to be computed according to each employee's
true date of permanent hire.  As previously noted, in the case of Bragg and
Strout, these dates are April 19, 1977 and June 12, 1978, respectively.
Prescott and Standley were both permanently hired on May 1, 1979, the date
from which both workers were employed continuously before being unlawfully
discharged.  Henderson's date of permanent hire was April 9, 1979, the date
from which Henderson worked continuously before being discharged.[fn]6

     The back pay due to the employees is to be computed as if each worker had
received a favorable performance rating and a recommendation from the Opera-
tion Maintenance Director under Article 17(5) of the contract.  Because the
City has not treated these employees fairly in the past, we believe it would
not be fair or proper to require that the amount of back pay due be dependent
upon a performance rating and recommendation by management.  Under Article 17
and Appendices A and B of the contract, then, the back pay due the employees
is to be computed according to the following figures:

                                    Bragg

     Oct. 26, 1979 - Dec. 31, 1979    $4.22/hr.    (Step "C" of Appendix A)
     Jan. 1, 1980 - April 19, 1980    $4.55/hr.    (Step "C" of Appendix B)
     April 20, 1980 - Dec. 31, 1980   $4.67/hr.    (Step "D" of Appendix B)

                                    Strout

     Oct. 26, 1979 - Dec. 31, 1979    $4.08/hr.    (Step "B" of Appendix A)
     Jan. 1, 1980 - June 12, 1980     $4.41/hr.    (Step "B" of Appendix B)
     June 13, 1980 - Dec. 31, 1980    $4.55/hr.    (Step "C" of Appendix B)

_______________

     6  We are aware that the wages, seniority and benefits granted to
Seasonal Laborers hired in the past for positions in the bargaining unit have
been determined on the basis of the date of hire for the unit position.  This
practice of the City does not mean, however, that we are precluded from order-
ing that the City use the correct date of permanent hire of the workers
involved in this case.  We express no opinion about whether the City has used
the proper date of permanent hire for any other Seasonal Laborers employed in
the unit.

                                    -12-
______________________________________________________________________________


                           Prescott and Standley[fn]7

     Oct. 26, 1979 - Dec. 31, 1979    $3.96/hr.    (Step "A" of Appendix A)
     Jan. 1, 1980 - May 1, 1980       $4.29/hr.    (Step "A" of Appendix B)
     May 2, 1980 - Dec. 31, 1980      $4.41/hr.    (Step "B" of Appendix B)

                                  Henderson

     April 21, 1980 - Dec. 31, 1980   $4.41/hr.    (Step "B" of Appendix B)


     Each employee is to be granted seniority, vacation time, and any other
benefit under the contract on the basis of permanent date of hire.  Due to
lack of work, Bragg and Strout were both laid off without pay, on the basis of
inverse seniority, from January 29, 1980 to April 7, 1980.  If either worker
would not have been laid off had the City properly credited their seniority
from the date of permanent hire, then the City is liable for back pay to the
employee during the period of layoff.  If either or both employees would have
been laid off even if the City had correctly recorded their date of permanent
hire, then the City is not liable for back pay during the layoff.

     If Prescott, Standley, or Henderson incurred or incurs any expense, such
as medical expenses, which the City has agreed to pay under the collective
bargaining agreement, the City shall reimburse the employee the full amount
of the City's obligation, plus interest computed in accordance with the
formula discussed supra.

     We will provide a procedure so that we may make a specific determination
regarding back pay and benefits due, in the event that the parties are unable
to settle these issues on their own.


                                    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.  968(5), it is ORDERED:

     That Respondents City of Bangor and Personnel Director John Perry, and
     their representatives and agents:

          1.  Cease and desist from:

              a) Discharging or otherwise discriminating against
                 employees employed in the Operations and Main-
                 tenance Division because of their interest in,
                 or activity on behalf of, the Union or any other
                 labor organization.

              b) Failing to treat all permanent employees who per-
                 form bargaining unit work as members of the unit
                 entitled to all rights and privileges provided by
                 the collective bargaining agreement.
_______________

     7  0n November 26, 1979, Standley was hired as an Automotive Serviceman
at the City's Motor Pool.  He voluntarily resigned from this position on
January 28, 1980.  We do not believe that Standley's resignation from a City
job should toll the City's back pay liability to him, because there is no
evidence he would have resigned from City employment had he been treated as a
member of the Operations and Maintenance Division unit.  Since we do not know
whether Standley would have resigned from a Laborer's position in the bargain-
ing unit, we see no basis for holding that by resigning from a non-unit job
he gave up any rights to reinstatement with back pay to a position in the
unit.

                                    -13-
______________________________________________________________________________


              c) Refusing to hire any former employee who worked
                 for more than 6 months for a position in the
                 Operations and Maintenance Division because of
                 the employee's interest in, or activity on behalf
                 of, the Union or any other labor organization.

              d) In any other manner interfering with, restraining,
                 or coercing employees employed in the Operations
                 and Maintenance Division in the exercise of the
                 right guaranteed them by Section 963 of the Act.

              e) Failing to notify and bargain with the Union
                 before discharging members of the operations and
                 Maintenance Division bargaining unit, except when
                 the discharge takes place in accordance with the
                 provisions of Article 20 of the present collective
                 bargaining agreement, or in accordance with similar
                 provisions in successor collective bargaining
                 agreements.

          2.  Take the following affirmative action necessary to effectuate
              the policies of the Act:

               a) Offer Lawrence Prescott and Allen Standley imme-
                  diate and full reinstatement to their former
                  Laborer jobs or, if those jobs no longer exist,
                  to substantially equivalent positions, and make
                  them whole, along with Jeffrey Bragg and Emery
                  Strout, for any loss of earnings or benefits
                  incurred by being discharged and not treated as
                  members of the bargaining unit in October, 1979,
                  in the manner set forther in the section of this
                  decision entitled "Remedies."

               b) Offer Randy Henderson immediate and full rein-
                  statement to his former job as a Laborer in the
                  City cemetery or, if this job no longer exists,
                  to a substantially equivalent position, and make
                  him whole for any loss of earnings or benefits
                  incurred by not being hired by the City in March,
                  1980, in the manner set forth in the section of
                  this decision entitled "Remedies."

               c) Post in the Operations and Maintenance Division
                  copies of the attached "Notice."  Copies of this
                  notice, after being signed and dated by Respondent
                  John Perry, shall be posted by the City immediately
                  upon receipt, and be maintained by it for 60 con-
                  secutive days thereafter in conspicuous places,
                  including all places where notices to employees are
                  customarily posted.  Reasonable steps shall be taken
                  by the City to ensure that these notices are not
                  altered, defaced, or covered by any other material.

               d) Notify the Executive Director, in writing, within
                  20 days from the date of this order, what steps
                  have been taken to comply with the order.

     Thirty days after the date of this decision and order, if the parties
have not agreed on the amount of back pay or benefits due to any employee,
the Union may file with the Executive Director and serve on the City of
Bangor, for each worker whose back pay and benefits have not been agreed
upon:

                  1. a weekly list of gross back pay claimed,

                                    -14-
______________________________________________________________________________


                  2. a weekly list of actual earnings from City
                     employment or other employment during the
                     back pay period,

                  3. a list of expenses incurred in seeking and
                     holding interim employment,

                  4. a list of any benefits claimed,

                  5. interest claimed, and

                  6. documents and/or affidavits supporting each
                     item.

     The City will have fifteen days from such filing to respond with
documents and/or affidavits bearing on each disputed item.  The Board
will thereafter issue a supplemental order for back pay and benefits
due, or conduct such further proceedings as are necessary to supplement
this order.

Dated at Augusta, Maine, this 24th day of September, 1980.


                                       MAINE LABOR RELATIONS BOARD



                                       /s/___________________________________
                                       Gary F. Thorne
                                       Alternate Chairman



                                       /s/___________________________________
                                       Don R. Ziegenbein
                                       Employer Representative



                                       /s/___________________________________
                                       Harold S. Noddin
                                       Alternate Employee Representative

                                    -15-
______________________________________________________________________________



                               STATE OF MAINE
                         MAINE LABOR RELATIONS BOARD
                            Augusta, Maine 04333




                           NOTICE TO ALL EMPLOYEES

                                 PURSUANT TO
                         a Decision and Order of the
                         MAINE LABOR RELATIONS BOARD
               and in order to effectuate the policies of the
               MUNICIPAL PUBLIC EMPLOYEES LABOR RELATIONS ACT
                   we hereby notify all personnel that:

     (1)  WE WILL NOT discharge or otherwise discriminate against Operations
and Maintenance Division employees because of their interest in or activity
on behalf of the Union.

     (2)  WE WILL NOT fail to treat all permanent employees who perform
bargaining unit work as members of the unit entitled to all rights provided
by the collective bargaining agreement.

     (3)  WE WILL NOT refuse to hire any former employee who worked for more
than 6 months for a position in the Operations and Maintenance Division
because of the employee's interest in or activity on behalf of the Union.

     (4)  WE WILL NOT in any other manner interfere with, restrain or coerce
Operations and Maintenance Division employees in the exercise of their rights
to engage in union activities.

     (5)  WE WILL NOT fail to notify or bargain with the Union before
discharging employees, except when the discharge takes place in accordance
with Article 20 of the collective bargaining agreement.

     (6)  WE WILL offer Lawrence Prescott and Allen Standley immediate and
full reinstatement to their former Laborer jobs or to substantially equivalent
positions, and make them whole, along with Jeffrey Bragg and Emery Strout, for
any loss of earnings or benefits incurred by their being discharged and not
treated as members of the bargaining unit in October, 1979.

     (7)  WE WILL offer Randy Henderson immediate and full reinstatement to
his former Laborer job or to a substantially equivalent position, and make him
whole for any loss of earnings or benefits incurred by not being hired by the
City in March, 1980.

     (8)  WE WILL within 20 days of the date of the Decision and Order notify
in writing the Maine Labor Relations Board at its offices in Augusta, Maine of
the steps we have taken to comply with this Decision and Order.

                                          CITY OF BANGOR



Dated ____________________             By ____________________________________
                                          John Perry     Director of Personnel


This Notice must remain posted for 60 consecutive days as required by the
Decision and Order of the Maine Labor Relations Board and must not be altered,
defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its
provisions, they may communicate directly with the offices of the Maine Labor
Relations Board, State Office Building, Augusta, Maine, 04333, Telephone
289-2016.
______________________________________________________________________________