STATE OF MAINE MAINE LABOR RELATIONS
Case No. 82-35
Issued: November 2, 1982
______________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
State, County, Municipal and )
University Employees, in the )
State of Maine, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
TOWN OF BAR HARBOR, )
)
Respondent. )
______________________________)
This is a prohibited practices case, filed pursuant to 26 M.R.S.A.
Section 968(5)(B), on May 26, 1982, by Teamsters Local Union No. 48, State,
County, Municipal and University Employees, in the State of Maine ("Union").
The Union alleged that the Town of Bar Harbor ("Employer") violated 26
M.R.S.A. Sections 964(1)(E), (B), and (A) and 26 M.R.S.A. Sections 965(1)(C),
(D), and (E) by (1) not giving the Employer's consultant and chief negotiator
proper authority to negotiate an agreement, (2) discriminating against Union
members by giving preferential work assignments to non-Union employees, (3)
engaging in surface bargaining throughout negotiations, (4) attempting to
intimidate the Union by threatening a "no-raise" contract if the Union
prevailed at fact-finding, (5) refusing to make tentative agreements, (6)
repudiating prior tentative agreements, (7) acting through its Public Works
Superintendent, harassing, interfering, intimidating, and discriminating
against the Union's Shop Steward by accusing the Steward of false charges
made at the negotiations against the Public Works Superintendent, and (8)
bargaining in bad faith by trying to force the Union to negotiate no salary
increases for two Public Works employees. The Respondent filed an answer,
on June 18, 1982, denying that it had violated any section of the Municipal
Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq.("Act").
A pre-hearing conference on the case was held on August 3, 1982, Chairman
Edward H. Keith presiding. On August 3, 1982, Chairman Keith issued a Pre-
Hearing Conference Memorandum and Order, the contents of which are
incorporated herein by reference.
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A hearing on the case was held on September 15, 1982, Chairman Edward H.
Keith presiding, with Employer Representative Don R. Ziegenbein and Alternate
Employee Representative Russell A. Webb. The Complainant was represented by
Walter J. Stilphen, Jr., Secretary-Treasurer of Teamsters Local Union No. 48,
and David L. Berg, Business Agent for Teamsters Local Union No. 48. The
Respondent was represented by Edward E. Ainsworth, Town Manager of the Town of
Bar Harbor. The parties were given full opportunity to examine and cross-
examine witnesses, introduce evidence, and made argument.
JURISDICTION
The Complainant Union is the exclusive bargaining agent, within the
meaning of Section 968(5)(B) of the Act, for a bargaining unit of all of the
Town's eligible employees, within the bargaining unit in the Bar Harbor
(Highway & Sewer) units, as determined in accordance with the Act. The Town
of Bar Harbor is a public employer as defined in Section 962(7) of the Act.
The jurisdiction of the Maine Labor Relations Board ("Board") to hear this
case and to render a decision and order herein lies in 26 M.R.S.A. Section
968(5).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. Teamsters Local Union No. 48, State, County, Municipal and University
Employees, in the State of Maine, is the certified/recognized bargaining agent
for the public employees in the Highway, Sewer, and Supervisor bargaining
units all in the employ of the Town of Bar Harbor.
2. The Town of Bar Harbor is a public employer within the meaning of 26
M.R.S.A. Section 962(7).
3. The latest collective bargaining agreement between the parties,
covering the employees mentioned in paragraph 1 hereof, expired on
December 31, 1981.
4. The parties entered into collective bargaining negotiations for a
successor collective bargaining agreement, to that mentioned in paragraph 3
supra, on or about November 12, 1981.
5. At the first negotiations session, the chief negotiator for the
Employer, in response to a question from the Union's chief negotiator, stated
that he had
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authority to reach an agreement and that the Town Council should be included
in the negotiations to facilitate reaching an agreement.
6. At the same session as mentioned in paragraph 5 hereof, the parties
reached ground rules to govern the parties' conduct during the course of the
negotiations.
7. The third ground rule, agreed to by the parties, states as follows:
"As tentative agreements are reached, they will be
reduced to writing and initialed by the PARTIES.
Such tentative agreements are subject to adoption
by the membership of the UNION and Council of the
TOWN. The TOWN will assume the responsibility for
preparing such tentative agreements for approval
of the PARTIES at the next negotiation meeting."
8. At the first negotiating session, cited in paragraph 5 supra, the
Union raised an issue concerning preferential job assignments for a certain
employee and concerning the Employer's alleged failure to discipline said em-
ployee for insubordinate refusal to perform work. The said employee is the
only employee in the affected bargaining units who is not a Union member.
9. The preferential treatment in work assignments, by the Employer in
regard to the employee mentioned in paragraph 8 hereof, dates back at least
6 years, to a time prior to any Union activity in the Town of Bar Harbor.
10. Approximately two months prior to the first negotiations session
between the parties, the Union provided its initial bargaining proposals to
the Employer.
11. At the First bargaining meeting, noted in paragraph 5 above, the
Employer's chief negotiator stated that he was unfamiliar with the Union's
proposals and that the Employer would provide a comprehensive response thereto
at the second bargaining session.
12. The second collective bargaining session between the parties was held
on or about November 18, 1982.
13. As the session noted in paragraph 12 above, the Employer provided the
Union with a comprehensive answer on non-monetary issues and the Employer's
chief negotiator stated that the Union could "buy" a contract with additional
money if the Union would agree with the Employer's language on non-monetary
subjects.
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14. The Union, after reviewing the Employer's proposals at the second
bargaining session, rejected the same alleging that the Employer's proposed
contract language was unreasonable.
15. At the meeting cited in paragraph 12 supra, the Union had agreed to
6 of the Employer's 28 proposals. The Employer had not agreed to any of the
Union's proposals. The Union threatened to go to mediation and the Chairman
of the Bar Harbor Town Council stated: "Why give him anything until they agree
to all our language."
16. The Employer refused to honor the Union's repeated requests for
written tentative agreements during the negotiations, in violation of the
parties' negotiating ground rule, cited in paragraph 7 hereof.
17. Prior to filing for mediation, the Union's chief negotiator asked
his counterpart for the Employer to agree that certain issues, which had been
tentatively agreed to, had been settled through tentative agreement.
18. The Employer's chief negotiator refused to agree that any tentative
agreements had been reached, therefore, the Union was forced to file for
mediation on all issues, including those on which tentative agreements had
been reached between the parties.
19. On or about December 1, 1981, the Union filed a request for
mediation.
20. The first mediation session was held on or about January 12, 1982.
Very little progress was achieved at this meeting.
21. A second mediation session was held in Bangor, on or about March 3,
1982. The Employer's and the Union's chief negotiators met alone with the
mediator on that occasion.
22. At the second mediation session, the parties reached tentative
agreement on all outstanding issues including wages, appointment of a foreman
and reorganization to effect the transfer of an employee from the treatment
plant to the public works department.
23. A third mediation session was held in Bar Harbor on March 18, 1982.
24. At the third mediation session, the Bar Harbor Town Council rejected
some of the prior tentative agreements and the Union's chief negotiator stated
that he, on behalf of the Union, would have to file for fact-finding. Among
the
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tentative agreements rejected by the Town Council were agreements on holidays,
a three-year agreement with annual across-the-board wage increases, and an
agreement concerning the transfer of an employee from the treatment plant to
public works.
25. In response to the chief union negotiator's statement, noted in para-
graph 24 above, the Employer's chief negotiator stated that, should the Union
prevail at fact-finding, the Town would not pay any raises nor would they
agree to any retroactive effect for the successor agreement, back to the date
of the expiration of the last collective bargaining agreement.
26. On or about April 8, 1982, the parties filed a joint request for
fact-finding. Prior to the formal filing being completed, the chief
negotiator for the Employer requested an additional mediation session.
27. A fourth mediation session was held in Bar Harbor, on or about
May 5, 1982. No issues were settled during this session.
28. Prior to filing for fact-finding, the Union's chief negotiator asked
his counterpart for the Employer to agree that certain issues, which had been
tentatively agreed to, had been settled through tentative agreement.
29. The Employer's chief negotiator refused to agree that any tentative
agreements had been reached, therefore, the Union was forced to file for fact-
finding on all issues, including those on which tentative agreements had been
reached between the parties.
30. The Union filed for fact-finding on 18 issues, including 6 issues on
which the parties had reached tentative agreement. The 6 issues on which the
Employer's chief negotiator refused to acknowledge that tentative agreement
had been reached, before fact-finding, were: Article 7 (Subcontracting),
Article 8 (Work Performed by Supervisors), Article 13 (Work Rules and
Discipline), Article 14 (Grievance Procedure), Article 20 (Vacations), and
Article 24 (Jury Duty Pay).
31. A mediated fact-finding hearing was held in Bangor on July 20, 1982.
32. At the fact-finding session the parties bargaining teams agreed to a
complete successor collective bargaining agreement, subject to ratification by
the principals for each party.
33. Included in said negotiated agreement were: (1) a two-year agreement
(a three-year agreement had been agreed to earlier), (2) a wage increase of 7%
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for the first year, with wage equalization, and a 6% wage increase for the
second year (the previously agreed-to wage increases had been 8% for the first
year, 7% for each of the second and third years), (3) the successor agreement
was to be retroactively effective to the expiration date of the expired
agreement, and (4) a standard work week of 40 hours, with 45 hours per week
of work guaranteed and premium pay of "time-and-a-half" being paid for hours
worked beyond 40 hours per week.
34. Because the "time-and-a-half" premium pay for work beyond 40 hours
per week provision had been previously rejected by the Bar Harbor Town
Council, the Union's chief negotiator was surprised when the offer therefor
was made, at fact-finding, by the Bar Harbor Town Manager.
35. Because of his surprise, at the offer mentioned in paragraph 34,
supra, the Union's chief negotiator asked the Town Manager if he, the Town
Manager, had specific authority to make said offer. The Town Manager assured
the Union's chief negotiator that he did have the authority to make said offer
and the offer was accepted by the Union.
36. The Fact-Finders unanimously and strongly recommended that the parties
ratify the agreement which their bargaining teams reached at fact-finding.
37. Subsequent to the issuance of the Fact-Finders' Report, the Bar
Harbor Town Council rejected the agreement, noted as sub-paragraph (4) of
paragraph 33 hereof, on the grounds that its negotiators exceeded their
bargaining authority by agreeing to the same.
38. Two days prior to the Board's hearing on this case, the Employer's
chief negotiator offered the Union a two-year contract with a 7% raise in the
first year, a 7% raise in the second year, and full retroactivity, if the Union
would drop its demand for premium pay after 40 hours, rather than after 45
hours.
39. In response to the offer noted in paragraph 38 hereof, the Union's
chief negotiator stated that he would attempt to "sell" said proposal to the
Union membership.
40. Immediately before the Board's hearing on this matter began, the Bar
Harbor Town Manager told the Union's chief negotiator that the Employer's Town
Council had repudiated the offer, noted in paragraph 38 hereof, and said offer
was, therefore, withdrawn.
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41. During the course of bargaining and a few days after a mediation
session, one of the employees who was a member of the Union's bargaining team,
and was the Union's shop steward, discovered that he had not been paid for
attendance at the bargaining meeting.
42. The employee then approached the Public Works Superintendent to ask
for his payment. The Superintendent stated that the employee would not be
paid for bargaining from the public works budget and that the employee should
discuss the matter with the Town Manager.
43. The employee discussed payment for bargaining with the Town Manager
and the employee received payment therefor.
44. Two days later, the Public Works Superintendent reprimanded the
employee for going outside the chain-of-command.
45. The reprimand, mentioned in paragraph 44 hereof, was rescinded by the
Town Manager and removed from the employee's file because progressive
discipline had not been followed, therefore, the written reprimand was
unwarranted.
46. The Public Works Superintendent accused the Union's shop steward, in
front of other unit employees, of telling the Town Manager and the Town
Council, during negotiations, of an incident which resulted in the Superin-
tendent's being reprimanded by the Town Manager.
47. Neither the Shop Steward nor any other member of the Union's
bargaining team related anything concerning said incident to either the Town
Manager or to the Town Council.
DECISION
The Union has alleged that the Employer has, in various ways, violated
several provisions of the Municipal Public Employees Labor Relations Act, 26
M.R.S.A. 961, et seq. ("Act"). The alleged violations of the Act center on
three Sections thereof: 964(1)(E), (A), and (B). We will discuss the
alleged violations of each Section of the Act in separate sections of this
decision.
THE DUTY TO BARGAIN IN GOOD FAITH
The primary purpose of the Act is to provide a mechanism for employers
and employees, the latter acting through their certified bargaining agent, to
resolve
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their differences and to reach agreements on the mandatory subjects of
bargaining, through collective bargaining. For this process to be fruitful,
both parties must engage in collective bargaining in good faith. The Union
has alleged herein that the Employer has violated the duty to bargain in good
faith, mandated by 26 M.R.S.A. 964(1)(E) by (1) not giving its consultant
and chief negotiator proper authority to negotiate an agreement, (2) refusing
to commit tentative agreements reached at the bargaining table to writing,
(3) unilaterally repudiating tentative agreements, (4) not making tentative
agreements, (5) failing to engage in good faith fact-finding, (6) engaging
in "surface bargaining," and (7) refusing to bargain wage increases for two
of the bargaining unit employees. Each specific alleged violation of the
duty to bargain in good faith will be addressed in the following paragraphs
of this section of the decision.
Employers and employees, engaged in the collective bargaining process to
reach a collective bargaining agreement, usually each select a bargaining team
and a chief negotiator to represent them at the bargaining table. This pro-
cedure was followed by the parties in this case. The principal parties each
reserved the right to ratify the final tentative agreement, reached by the
bargaining teams at the negotiating table. In factual situations analogous to
that presented in this case, we have repeatedly held that the bargaining team
must be given authority, by its principal party, which is sufficient for said
team to reach an agreement. City of Westbrook v. Westbrook Police Unit, MLRB
Case No. 81-50, p. 6 (September 24, 1981). The necessary quantum of bargain-
ing authority, which a bargaining team must possess, was set forth in Fox
Island Teachers Association v. M.S.A.D. No. 8 Board of Directors, MLRB Case
No. 81-28 (April 22, 1981). We stated:
"A principal party may lawfully reserve the right to ratify so
long as its negotiators are clothed with sufficient knowledge,
guidelines and authority to make tentative agreements. If the
negotiators are mere conduits or messengers between the princi-
pal party and the other party's bargaining team, without suffi-
cient authority to negotiate and make tentative agreements, the
principal is guilty of bad faith bargaining. See Union River
Teachers Association v. Trenton School Committee, MLRB Nos. 80-28,
et al., at 3-4 (May 30, 1980)."
Fox Island, supra, p. 6, M. The facts in this case demonstrate that the
Employer's bargaining team entered into tentative agreements, at the nego-
tiating table, and that several such agreements were unilaterally repudiated
by the Employer's bargaining team at later bargaining sessions. The Union
was told that at least
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one tentative agreement, that relating to a standard 40-hour work week with
time-and-one-half pay for all work beyond 40 hours, was rejected by the Town
Council because the tentative agreement had been beyond the Employer bargain-
ing team's negotiating authority. On other occasions, tentative agreements
were unilaterally repudiated by the Town Council, without any reasons therefor
given to the Union. This activity illustrates a situation where a bargaining
team is either making tentative agreements which are beyond the scope of its
authority or where bargaining authority, once having been conferred upon a
bargaining team, is later withdrawn. In either case, we hold that the
Employer herein has failed to bargain in good faith, in violation of Section
964(l)(E) of the Act.
A second alleged violation concerns the Employer's refusal to reduce
tentative agreements, reached at the bargaining table, to writing and to
produce the same, to the parties, at the next bargaining session. The Union
avers that said conduct by the Employer violated 26 M.R.S.A. 965(1)(D).
That Section of the Act provides as follows:
"1. Negotiations. It shall be the obligation of the public
employer and the bargaining agent to bargain collectively.
'Collective bargaining' means, for the purposes of this
chapter, their mutual obligation . . .
D. To execute in writing any agreements arrived at,
the term of any such agreement to be subject to nego-
tiation but shall not exceed 3 years;
In Medway Teachers Association v. Medway School Committee, MLRB Case No.
80-10, p.3 (January 10, 1980), we held that the above statutory provision
applies only to the final agreement bargained by the parties. We continue to
believe that Section 965(1)(D) only relates to the reduction of the final
agreement to writing. A separate issue, however, is the effect of a
negotiating ground rule, such as was in effect in this case, requiring that
tentative agreements be reduced to writing. The relevant ground rule, agreed
to by the parties herein, is reproduced in full in paragraph 7 of our findings
of fact. In paragraph 16 of said findings, we determined that, in fact, the
Employer did not comply with the ground rule. Contravention of a negotiating
ground rule, while not constituting a per se violation of the Act, has been
held to be evidence of breach of the duty to bargain in good faith. Caribou
School Department v. Caribou Teachers Association, Me., 402 A.2d 1279, 1282-
1283 (1979). The Employer's violation of a ground rule, mandating that the
Employer was to prepare written tentative agreements "for approval of the
parties at the next negotiation meeting," is evidence supporting our above
holding that the Employer
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has violated Section 964(1)(E) of the Act.
The Union has alleged that the Employer has breached the duty to bargain
in good faith by unilaterally repudiating tentative agreements, which had been
reached by the parties'bargaining teams. We have found that the Employer, at
the third mediation session, unilaterally rejected several of the tentative
agreements, reached at the preceding session. We held, in Lewiston Police
Department v. City of Lewiston, MLRB Case No. 79-64, p.8 (December 18, 1979),
that it was evidence of a violation of 26 M.R.S.A. 964(1)(E) for a party to
unilaterally withdraw prior tentative agreements. Consistent with the
Lewiston decision, we hold that the Employer's unilateral withdrawal of
tentative agreements herein further substantiates our holding that the
Employer has violated Section 964(1)(E) of the Act.
Another alleged Employer violation of the duty to bargain in good faith
is an averment, by the Union, that the Employer has failed to reach tentative
agreements in this case. Although the Employer failed and refused to reduce
those tentative agreements which were reached to writing, several issues in
dispute were in fact tentatively agreed to by the parties in this case. Two
of the tentative agreements reached at fact-finding, relating to transporta-
tion for mechanics and compensatory time, were written and signed by the chief
negotiators for the parties. Other tentative agreements were concluded and
were later unilaterally repudiated by the Employer and yet others were reached
and remained as tentative agreements, between the parties, at the time of the
Board hearing on this case. In sum, therefore, we find no merit to the
Union's claim that the Employer violated the duty to bargain in good faith by
failing to reach tentative agreements at the bargaining table.
The Union has further alleged that the Employer violated Section
964(1)(E) of the Act by failing to engage in good faith fact-finding.
Specifically, the Union averred, and established through relevant evidence
presented to the Board, that the Employer's chief negotiator refused, when
asked to do so prior to fact-finding, to agree that certain issues, which had
in fact been tentatively agreed to, had been settled through tentative agree-
ment. A failure to participate in fact-finding in good faith constitutes a
violation of 26 M.R.S.A. 964(1)(E). Sanford School Committee v. Sanford
School Custodian Unit, MLRB Case No. 78-33, p.2 (November 14, 1978). The
natural effect of the Employer's action, in this context, was to unnecessarily
prolong the fact-finding process. We hold that the Employer's conduct, prior
to fact-finding and which is noted above, violated Section 964(1)(E)
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of the Act. Having found that the Employer's conduct, in connection with its
participation in fact-finding, to be violative of the Act, we will order the
Employer to cease and desist from such conduct in the future. The Union's
prayer for relief asks that, upon a holding that the Employer engaged in bad
faith fact-finding, the Union be awarded its fact-finding costs. As was noted
in paragraph 30 of our findings of fact, the Employer's illegal conduct only
related to 6 of the 18 issues involved in the fact-finding. Stated differ-
ently, 12 of the 18 issues were properly before the fact-finders and, there-
fore, the parties would have required the services of the fact-finders, absent
any Employer misconduct. In Sanford Teachers Association v. Sanford School
Committee, MLRB Case No. 77-36, p.4 (September 14, 1977), we stated:
"As a result of the School Committee's-improper conduct, the
Association incurred additional expense of $288.13 for fact-finding
and $44.30 for the preparation of a post-hearing brief. We conclude
that the School Committee must compensate the Association for a total
of $332.43 as a fair and reasonable assessment of the expense in-
curred by the Association as a direct result of the improper conduct."
In this case, the evidence presented by the Union established that its total
fact-finding expenses were $441.70. One-third of the issues presented for
fact-finding were brought thereto because of the Employer's above violation
of the Act. We will, therefore, order the Employer to compensate the Union
the amount of $147.23. This sum represents a reasonable assessment of that
portion of the Union's fact-finding costs which resulted from the Employer's
misconduct.
The Union has contended that the Employer violated 26 M.R.S.A. 964
(1)(E) by engaging in "surface bargaining." We have defined "surface bargain-
ing" as occurring "when a party goes through the motions of collective bar-
gaining with no intention of reaching agreement on the matters under
discussion." M.S.A.D. No. 22 Board of Directors v. Tri-22 Teachers Associa-
tion, MLRB Case No. 82-33, p.6 (October 5, 1982). In this case, two state-
ments made by members of the Employer's bargaining team, viewed in conjunction
with some of the facts herein, lead us to the conclusion that the Employer has
engaged in "surface bargaining" with the Union on wage issues. The Chairman
of the Bar Harbor Town Council stated, with reference to the Union's demand
for a wage increase, "Why give him anything until they agree to all our
language." The Employer's chief negotiator stated, when the Union threatened
to go to fact-finding, that, should the Union prevail at fact-finding, the
Town would not pay any raises nor would they agree to any retroactive effect
for the successor agreement, back to the expiration date of the prior agree-
ment. These
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statements, taken together with the Employer's repeated unilateral rejection
of tentative agreements on wage issues, establish that the Employer has
engaged in "surface bargaining" over those issues. We hold, therefore, that
the Employer has violated Section 964(1)(E) of the Act by engaging in "surface
bargaining" over the Union's wage issue proposals.
Finally, the Union has alleged that the employer breached its duty to
bargain in good faith by refusing to bargain for a wage increase for two of
the employees in the bargaining unit. The duty to bargain wages is not only
limited to bargaining wage increases but it also encompasses bargaining wage
decreases or, as in this case, for wage equalization. In the facts before us,
the Employer averred that historical pay inequities between job classifica-
tions had been perpetuated, through adoption of an across-the-board wage
increase in the expired collective bargaining agreement. The Employer, by
bargaining for no wage increase for two unit employees, was attempting to
equalize the wages for the bargaining unit employees. Under the facts before
us, the Employer's bargaining position does, at a minimum, have a reasonable
basis and, therefore, we hold that the Employer did not violate Section
964(1)(E) of the Act when it tried to bargain no wage increase for two of the
unit employees.
HARASSMENT, INTERFERENCE, AND INTIMIDATION OF UNION MEMBERS BY THE PUBLIC
WORKS SUPERINTENDENT
The Union has alleged that the Employer, acting through its Public Works
Superintendent, has harassed, interfered with, and intimidated Union members,
all in violation of 26 M.R.S.A. 964(1)(A). The conduct cited by the Union,
in substantiation of its claim, was established through relevant evidence in
the proceeding before the Board. Said actions are outlined in paragraphs 42-
44 and 46 of our findings of fact.
Under the legal doctrine of respondeat superior, an employer is
vicariously liable and responsible for the acts and statements made by its
employees within the scope of their employment. Welch v. Maine Central R.
Co., 86 Me. 552, 30 A.116 (Me. 1894). The Union's first claim, in connection
with the written reprimand which the Superintendent issued to the Union's shop
steward, is based upon: (1) the fact that the reprimand was given and (2) the
Superintendent's employment relationship with the employer. The Union would
have us infer that the reprimand was given on behalf of the Employer and was
within the Superintendent's scope of
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employment. The Superintendent, as the Union steward's supervisor, is
authorized to impose discipline upon that employee. In this case, however,
the Town Manager's actions rebut any inference that the Superintendent was
acting as an agent of the Employer, when he issued the written reprimand.
Upon learning of the reprimand, the Town Manager took prompt and effective
action to remedy the situation. The written reprimand was rescinded and
withdrawn from the affected employee's personnel file. Under the facts before
us, we hold that the Superintendent's action, in issuing a written reprimand
to the Union's shop steward which was promptly repudiated by the Town Manager,
does not constitute a violation of 26 M.R.S.A. Section 964(1)(A) by the
Employer.
The Union also alleged that the Superintendent's false accusation against
two members of the Union's bargaining team, in front of several members of the
bargaining unit, constitutes a violation of Section 964(l)(A) of the Act by
the Employer. We have noted that comments by the Employer or its agents which
are likely to stir up discontent with the Union, when said statements are also
threatening in nature, may constitute violations of Section 964(1)(A).
Teachers Association of S.A.D. #49 v. Board of Directors of M.S.A.D. #49,
MLRB Case No. 80-49, p.7 (November 18, 1980). The statements of the Superin-
tendent in this case were likely to and did in fact cause resentment of the
Union's bargaining team by some Union members. Were we to attribute this
statement to the Employer, we would hold that it was violative of the Act.
Under the facts before us, however, we find that the Superintendent's comment
was contradicted by the Town Manager, at a meeting of the Bar Harbor Town
Council and that said utterance, therefore, was not spoken within the scope of
the Superintendent's agency with the Employer. We hold, therefore, that,
under the facts before us in this case, the Superintendent's statement does
not rise to the level of a violation of 26 M.R.S.A. Section 964(1)(A) by the
Employer.
PREFERENTIAL TREATMENT AND WORK ASSIGNMENTS FOR THE NON-UNION EMPLOYEE
The Union's final allegation is that the Employer violated Section
964(1)(B) of the Act by giving preferential treatment and work assignments to
the only non-Union employee in the bargaining unit. In our recent decision of
Allen C. Holmes v. Town of Old Orchard Beach, MLRB Case No. 82-14, p.10
(September 27, 1982), we adopted the standard promulgated by the National
Labor Relations Board and adopted
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by the Federal Courts of Appeal, for evaluating claims of discrimination
resulting from union activity. In adopting the "Wright Line" test, we cited
the following:
"[W]e shall henceforth employ the following causation test in
all cases alleging violation of [the sections of the National
Labor Relations Act which parallel 26 M.R.S.A. 964(1)(B)]
turning on employer motivation. First, we shall require that
the [Complainant] make a prima facie showing sufficient to sup-
port the inference that protected conduct was a 'motivating
factor' in the employer's decision. Once this is established,
the burden will shift to the employer to demonstrate that the
same action would have taken place even in the absence of pro-
tected conduct." Citation omitted and amendments by the Board.
In this case, the Union established that the only non-union employee, in the
affected bargaining unit, was receiving preferential work assignments and
treatment from the Employer. Any possible inference that said preferential
treatment and work assignments were the result of the employee's non-
membership in the Union was, however, successfully refuted by the facts.
The preferential treatment has been enjoyed, by the employee, for at least 6
years; well before any union activity in the Bar Harbor Public Works Depart-
ment. Since the discriminatory treatment predated any union activity, we must
conclude that it does not stem from, nor is it in any way related to, the
employee's lack of membership in the Union. We hold, therefore, that under
the facts before us, the Employer did not violate 26 M.S.R.A. Section
964(1)(B) by giving preferential treatment and work assignments to the only
non-union employee in the bargaining unit. Our holding herein should,
however, not be construed as being a license for the continuation of the
preferential treatment. Our holding is explicitly limited to the factual
context before us, in connection with this allegation.
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. Section 968(5), it is hereby ORDERED:
1. That the Town of Bar Harbor, its representatives and agents, shall:
A. Cease and desist from:
1) Failing to provide sufficient authority to its bargaining
team to allow that team to reach a successor collective
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bargaining agreement with the Union;
2) Unilaterally repudiating tentative agreements reached at
the bargaining table, other than final council action
on ratification of the contract as a whole;
3) Failing and refusing to reduce tentative agreements to
writing, to be presented to the parties at the next
bargaining session after said agreements had been reached;
4) Failing and refusing to participate in fact-finding in
good faith by refusing to agree that issues, which in
fact have been tentatively agreed to, have been so agreed
to; and
5) Engaging in surface bargaining.
B. Pay to Teamsters Local Union No. 48 the sum of $147.23 to com-
pensate the Union for that portion of its fact-finding expenses
which resulted from the Employer's misconduct, immediately prior
to fact-finding.
2. That all other allegations of the Prohibited Practices Complaint
filed by the Union on May 26, 1982, which are not specifically
addressed in paragraph 1 of this order be and hereby are DISMISSED.
Dated at Augusta, Maine, this 2nd day of November, 1982.
MAINE LABOR RELATIONS BOARD
The parties are advised of /s/____________________________________
their right, pursuant to Edward H. Keith
26 M.R.S.A. Section 968(5) Chairman
(F), to seek a review by the
Superior Court of this
decision by filing a complaint
in accordance with Rule 80B /s/____________________________________
of the Rules of Civil Pro- Don R. Ziegenbein
cedure within 15 days after Employer Representative
receipt of this decision.
/s/_____________________________________
Russell A. Webb
Alternate Employee Representative
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