STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-34
Issued: March 31, 1982
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)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Complainant, )
v. )
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THE STATE OF MAINE, ) DECISION AND ORDER
)
and )
)
THE DEPARTMENT OF TRANSPORTATION, )
)
Respondents. )
____________________________________)
This is a prohibited practices case filed pursuant to 26 M.R.S.A. 979-
H(2) on November 26, 1980 by the Maine State Employees Association ("MSEA").
MSEA alleges in its complaint that the State of Maine ("State"), through the
Department of Transportation ("D.O.T.") an agency of the State, violated 26
M.R.S.A. 979-C(1)(A) and (B) by interfering with, restraining, or coercing
employees in the exercise of the rights guaranteed in 26 M.R.S.A. 979-B and
by discouraging membership in an employee organization by discrimination in
regard to hiring. The State filed a response to the complaint on December 19,
1980, denying that it has violated any provisions of the State Employees Labor
Relations Act ("Act"), 26 M.R.S.A. 979, et seq.
A pre-hearing conference hereon was held on December 29, 1980, Alternate
Chairman Donald W. Webber presiding. On December 30, 1980, Alternate Chairman
Webber issued a Pre-Hearing Conference Memorandum and Order, the contents of
which are incorporated herein by reference.
A hearing was held on April 15, 1981, Chairman Edward H. Keith presiding,
with Employer Representative Don R. Ziegenbein and Alternate Employee Repre-
sentative Harold S. Noddin. MSEA was represented by Shawn C. Keenan, Esq. and
the State by Linda D. McGill, Esq. The parties were given full opportunity to
examine and cross-examine witnesses, present evidence, and make argument.
Both parties filed post-hearing briefs which have been duly considered by the
Board.
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JURISDICTION
MSEA is the bargaining agent within the meaning of 26 M.R.S.A. 979-H(2)
for the Operations, Maintenance and Support Services Bargaining Unit. The
State and D.O.T. are public employers, as defined in 26 M.R.S.A. 979-A(5).
The jurisdiction of the Maine Labor Relations Board to hear this case and to
render a decision and order herein lies in 26 M.R.S.A. 979-H.
FINDINGS OF FACT
Upon review of the entire record, the Maine Labor Relations Board
("Board") finds:
1. The Complainant Maine State Employees Association (MSEA), having
offices and a place of business at 65 State Street, Augusta, Maine, 04330, is
the certified/recognized bargaining agent of the State employee Operations,
Maintenance and Support Services bargaining unit.
2. The Respondent State of Maine (State) is the public employer as
defined in 26 M.R.S.A. 979-A(5). The Department of Transportation (D.O.T.)
is an agency of the State.
3. Jean-Guy Paquet is an Automotive Mechanic for the D.O.T. and is a
member of the Operations, Maintenance and Support Services bargaining unit.
4. Since 1969, Jean-Guy Paquet has been employed as an auto mechanic in
the Motor Transport Service of the Maine Department of Transportation.
5. That, from 1960 to 1966, Jean-Guy Paquet was employed as a sub-
contractor for the Scott Paper Company, supervising about 15 men in a woods-
road building and maintenance operation.
6. That, in addition to the work experience mentioned in paragraphs 4
and 5 hereof, Jean-Guy Paquet has been involved in several endeavors of civic,
charitable and/or military nature. Mr. Paquet founded and, for several years
operated, an ambulance service in the Town of Jackman. He has served as a
member of the Jackman Board of Appeals, deciding zoning appeals. He was a
founder of the Jackman Housing Corporation and was instrumental in planning,
securing financing for, building and operating an elderly housing project in
the Town of Jackman. He has
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served as an appointive and an elected director of the M.S.A.D. #12 Board of
Directors. He has, for the past 6 or 7 years, been a sergeant with the Maine
Army National Guard, serving as a helicopter crew chief, a cross-trained
medic, and as the equal employment opportunity officer for his unit. As part
of his military service, Mr. Paquet supervises the maintenance of between one
to ten helicopters and he has supervised several rescue operations.
7. That, from 1977 until the present time, Jean-Guy Paquet has been very
active in the affairs of the Complainant Maine State Employees Association.
From 1977 to the present time, Mr. Paquet has organized employees for MSEA,
has handled lower-level grievances, has served on the state-wide bargaining
team for the Union, and has, since 1979, served as a union steward.
8. On May 1, 1977, the Maine Department of Transportation posted a
notice announcing a vacancy in the position of Highway Maintenance Foreman in
the Jackman area lot.
9. That, as a result of the notice mentioned in paragraph 8 hereof, both
Mr. Paquet and Mr. Raymond Gourde initially applied to be considered for the
opening, however, Mr. Gourde withdrew his application shortly thereafter.
10. That, because Mr. Paquet was the only applicant for the Highway Main-
tenance Foreman position, the Department of Transportation reposted the said
vacancy on or about June 2, 1977.
11. That, as a result of the reposting mentioned in paragraph 10 hereof,
interviews were conducted on June 16, 1977 by the Department of Transportation
for the purpose of determining the most qualified applicant to fill the
foreman vacancy.
12. That, as a result of the interviews mentioned in paragraph 11 hereof,
Mr. Harold Goodridge was found to be the most qualified candidate and he was
selected to fill the vacancy. Mr. Goodridge was found, by the interview
board, to be more qualified than Mr. Paquet to fill said vacancy.
13. That Mr. Paquet filed a grievance over the reposting, mentioned in
paragraph 10 supra, alleging that said reposting procedure was inconsistent
with internal Department of Transportation practices and procedures. Said
grievance was denied by the Commissioner of Transportation and was not
appealed beyond that level.
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13. That, on or about March 6, 1979, Mr. Harold Goodridge died thereby
creating a vacancy in the Highway Maintenance Foreman position at the Jackman
lot of the Maine Department of Transportation.
14. That, subsequent to Mr. Goodridge's demise, the Department of
Transportation caused a notice to be posted, at its work locations, announcing
competitive interviews for the purpose of filling the vacancy mentioned in
paragraph 13 hereof.
15. That, as a result of the notice mentioned in paragraph 14 hereof,
Jean-Guy Paquet, Raymond Gourde and a Mr. Ladd applied to be interviewed to
fill the said vacancy, however, Mr. Gourde withdrew his application prior to
the interviews.
16. Since Raymond Gourde was the crew leader at the Jackman lot at the
time of Mr. Goodridge's death, he performed the duties of the highway
maintenance foreman, until the formal selection process could be completed.
Said interim promotion was made in accordance with applicable Department of
Transportation policies.
17. On June 8, 1979, both Mr. Paquet and Mr. Ladd were interviewed by a
duly constituted promotions board, for the purpose of determining whether
either applicant was qualified to fill the aforesaid vacancy.
18. The promotions board determined that neither Mr. Paquet nor Mr. Ladd
was qualified to fill the highway maintenance foreman's position.
19. Mr. Gourde continued to perform the foreman's duties until mid-
November, 1979, when he was formally promoted to the position of foreman at
the Jackman lot, on a probationary basis.
20. In mid-January, 1980, Mr. Gourde suggested that he be voluntarily
demoted and returned to his former position of crew leader because of poor
health. Said request was granted by the Department of Transportation.
21. Subsequent to the June 8, 1979 interviews and because no qualified
candidate had been promoted thereby, the Maine Department of Transportation
advertised for members of the general public to apply to fill the highway
maintenance foreman's position by listing the same with the Maine Job Service.
22. That the Maine Job Service referred two potential candidates to the
Department of Transportation, however, neither candidate possessed the
necessary
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qualifications to fill said vacancy.
23. That, from June 8, 1979 until mid-November, 1979, and early to mid-
January, 1980, the Department of Transportation was attempting to "recruit" a
qualified person to serve as the highway maintenance foreman position at the
Jackman lot.
24. That, effective January 19, 1980, Charles O'Brien, a former Jackman
Town Manager, was appointed to fill the foreman position.
25. That, subsequent to the appointment mentioned in paragraph 24 hereof,
Jean-Guy Paquet filed, challenging the propriety of said action by the Depart-
ment of Transportation.
26. Said grievance was resolved by the Commissioner of Transportation who
vacated the appointment on the grounds that (1) the vacancy was not posted
within the Department when it occurred, upon Mr. Gourde's voluntary demotion,
and (2) an outside applicant was selected to fill the vacancy in contravention
of the seniority article of the applicable collective bargaining agreement.
The Commissioner determined that Mr. O'Brien had to be replaced by an
individual selected through the Department's regular selection procedure.
27. As a result of the Commissioner's action cited in paragraph 26 hereof,
on April 9, 1980, the Department of Transportation posted a notice to its em-
ployees, informing them of their opportunity to apply for the highway mainten-
ance foreman position at the Jackman lot.
28. In response to the notice mentioned in paragraph 27 hereof, five
persons, including Jean-Guy Paquet and Raymond Gourde, filed applications to
fill the vacancy.
29. That, since Mr. Paquet was determined by the promotions board in
June, 1979, to lack the necessary qualifications to fill said vacancy, Norman
Levesque, the Division Engineer and the chairman of the promotions board,
wrote to Mr. Paquet asking him to provide information relating to the changes
in Mr. Paquet's experience and qualifications, since the prior application.
Mr. Paquet supplied the requested data and provided corroboration for the
information which had been included in his 1979 application.
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30. On May 30, 1980, the five applicants mentioned in paragraph 28 hereof
were interviewed by the promotions board.
31. As a result of said interviews, only Raymond Gourde was found to have
the necessary qualifications to fill the vacancy. Mr. Paquet and the other
three candidates were found not to meet the necessary qualifications for the
foreman position.
32. The Union, "on behalf of certain State employees covered under terms
of [the collective bargaining agreement] who recently applied for a Highway
Foreman's position in Jackman," filed a grievance over the interview board's
determination that all of the candidates but for Mr. Gourde were unqualified
to fill the foreman's position.
33. The grievance mentioned in paragraph 32 hereof was resolved by the
Commissioner of Transportation's finding that all of the applicants were
qualified to fill the vacancy.
34. The Commissioner's ruling did not, however, reverse the selection of
Raymond Gourde to fill the vacancy because, although all five candidates were
deemed qualified, Mr. Gourde was, on the basis of the interviews, the best
qualified candidate.
35. That Jean-Guy Paquet's overall interview rating scores declined, from
his first interview in 1977 to the 1979 and the 1980 interviews. Mr. Paquet's
scores for his experience, as determined by interviewer Levesque were: 1977
(4), 1979 (0-1), 1980 (1), out of a total of 5 possible points. The most
subjective of the interview areas; attitude, personality, mental alertness,
and judgment; showed similar declines, on interviewer Levesque's interview
forms.
36. That, on or about July 7, 1980, Division Engineer Norman Levesque
initiated an investigation, conducted by Blaine Canwell, an Investigator with
the Department of Transportation, into allegations that Jean-Guy Paquet had
used a State vehicle to haul hot top for his, Paquet's, own personal use and,
further, that Paquet had taken a culvert, some three years earlier, and used
a State vehicle to haul it away.
37. Investigator Canwell's inquiry did not result in any charges being
lodged against Mr. Paquet and, therefore, no record of the investigation was
placed in Mr. Paquet's personnel files.
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DECISION
The Union contends that the 1980 Department of Transportation ("D.O.T.")
promotions board, in its non-selection of Jean-Guy Paquet for the position of
highway maintenance foreman at the Jackman lot, violated 26 M.R.S.A. 979-C
(A) and (B). The thrust of the Union's former allegation is that D.O.T. and,
hence, the State, violated Section 979-C of the S.E.L.R.A. because the natural
result of its non-selection was the interference with the free exercise of
Section 979-B rights by Mr. Paquet and other state employees. Our test for
the violation of the analogous section of the Municipal Public Employees Labor
Relations Act, 26 M.R.S.A. 9641l)(A), was set forth in Lewiston Police
Department, I.B.P.O. v. City of Lewiston, M.L.R.B. No. 79-64, at 6 (12/18/79).
In that case we stated that "[t]he test for whether an action violates the
interference section of the Act, 26 M.R.S.A. 964(1)(A), is whether the
employer has engaged in conduct which, it may reasonably be said, tends to
interfere with the free exercise of Section 963 rights." This definition of
a violation of the analogous section of the M.P.E.L.R.A. may be applied in
describing a violation of the S.E.L.R.A. Opinion of the Justices, Me., 401
A.2d 135, 146 (1979).
The facts in this case, especially the background occurrences established
by the Union, refute any possible inference that D.O.T. had not selected
Mr. Paquet because of, and in order to dissuade him from, his participation
in Union activities. The record indicates that Mr. Paquet had, on two
occasions prior to the 1980 interview, not been selected to fill the foreman's
position. Regardless of said prior rejections, Mr. Paquet not only continued
but also intensified his efforts on behalf of the Union. Mr. Paquet continued
his organizing efforts, and he maintained his representation of employees in
the grievance procedure. Furthermore, he became a Union steward and served on
the Union's State-wide bargaining team. No actual intent, on the part of the
employer to discourage Mr. Paquet's participation in Union activities, was
established and no inference thereof arises from our review of all of the
relevant and background facts in this case.
The Union's second allegation is that Mr. Paquet was not promoted to the
position of Highway Maintenance Foreman as a result of discrimination against
him for his Union activities, in violation of Section 979-C(1)(B) of the
S.E.L.R.A. In Lewiston Police Department, supra, we outlined the test for
violations of the parallel section of the Municipal Act. We stated:
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"The test for a violation of Section 964(1)(B) is whether
there was discrimination which had as its purpose the dis-
couragement or encouragement of union activities. A pur-
pose need not be proved, however, where the discriminatory
conduct has the natural consequence of such a result or where
it was inherently destructive of important employee rights.
See NLRB v. Great Dane Trailers, Inc., 388 U.S. 26, 34 (1967).
Where the adverse effect of the discriminatory conduct is com-
paratively slight, an anti-union motive must be proved if the
employer has come forward with evidence of legitimate and sub-
stantial justifications for the conduct. Id." M.L.R.B. Case
No. 79-64 at 5.
The first portion of the above analysis requires an examination of the motives
underlying the alleged discrimination. Our review of the facts in this case
leads us to the conclusion that Mr. Paquet was indeed the victim of discrimi-
nation. The cause of this unequal treatment, however, is not that alleged by
the Union. Division Engineer Levesque's testimony is replete with comments
establishing a great deal of chauvinism within the Highway Maintenance
Division of the Department of Transportation in general and a disdainful
attitude toward the Motor Transport Service in particular. This deduction is
based not only on particular statements which were uttered but also upon our
observation of Mr. Levesque's demeanor in making them. The Division
Engineer's statements included a denigration of Mr. Paquet's performance
evaluations. Mr. Levesque stated:
"Based on the information that I have received about Motor
Transport evaluations, they have - - and I have to say it's
fairly decent information - - that their evaluations of their
Motor Transport people runs into the 90's and the 95's mostly,
so that they are unusually high raters."
Furthermore, the engineer stated one reason that Mr. Paquet was not selected
for the foreman's position was because he was an auto mechanic in the Motor
Transport Service. He opined that "the logical thing to do" was to give
preference to a person from the maintenance job classification series, rather
than an employee in the motor transport series, for said position. Finally,
the Union did not contend that the person selected for the position,
Mr. Raymond Gourde, was not qualified to perform the highway foreman's work.
The Union failed to establish that the D.O.T.'s treatment of Mr. Paquet
was in any way related to his union activities. The discrimination
established, of favoring highway maintenance employees over motor transport
employees for promotion to the highway maintenance foreman position, does not
constitute a violation
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of the State Employees Labor Relations Act. Not only did the State establish
the reason for its disparate treatment of Mr. Paquet but it also established
that a Union steward had been selected, approximately two months prior to the
May, 1980, interview, to serve as a highway maintenance foreman in the
Winthrop area, part of the same Highway Maintenance District as is involved
here. That employee, however, declined to accept the promotion.
Having found that the Union failed to prove that Mr. Paquet's non-
selection was in any way related to his Union activities, we need not review
our prior holding that discrimination which was "in part" motivated by anti-
union animus is violative of the S.E.L.R.A.
ORDER
On the basis of the foregoing findings of fact and discussion, and by
virtue of and pursuant to the powers granted to the Maine Labor Relations
Board by the provisions of 26 M.R.S.A. 979-H, it is ORDERED:
That the prohibited practices complaint, brought by the
Maine State Employees Association and filed on November
26, 1980 in Case No. 81-34, be and hereby is dismissed.
Dated at Augusta, Maine this 3lst day of March, 1982.
MAINE LABOR RELATIONS BOARD
The parties are advised of their /s/___________________________________
right pursuant to 26 M.R.S.A. Edward H. Keith
979-H(F) to seek review of Chairman
this decision by the Superior
Court by filing a complaint in
accordance with Rule 80B of /s/___________________________________
the Rules of Civil Procedure Don R. Ziegenbein
within 15 days after receipt of Employer Representative
this decision.
/s/___________________________________
Harold S. Noddin
Alternate Employee Representative
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