STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-08
Issued: March 12, 1984
____________________________________
)
TEAMSTERS LOCAL UNION NO. 48, )
)
Complainant, )
)
v. )
)
RUMFORD/MEXICO SEWERAGE DISTRICT ) DECISION AND ORDER
)
and )
)
Superintendent Peter W. DeFilipp, )
)
Respondents. )
____________________________________)
Presented for decision in this prohibited practices case are the
questions whether the Rumford/Mexico Sewerage District and its Superintendent
(District) violated 26 M.R.S.A. Section 964 (1)(A) and (B) (1974) by
granting raises to two employees during an organizational campaign, making
allegedly coercive statements to another employee, and failing to forward
a phone call from the union to the shop steward during working hours.
Teamsters Local 48 (Local 48 or union) filed its complaint pursuant to
26 M.R.S.A. Section 968 (5)(B)(Supp. 1983) on September 20, 1983. The
District filed a response on October 12, 1983, denying that any of its
actions had violated the Municipal Public Employees Labor Relations Act,
26 M.R.S.A. Section 961, et. seq. (1974 & Supp. 1983)
A pre-hearing conference on the case was held on November 28, 1983,
Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber
issued on November 28 a Pre-Hearing Conference Memorandum and Order, the
contents of which are incorporated herein by reference.
-1-
A hearing was held on December 12, 1983, Alternate Chairman Webber
presiding, with Employer Representative Thacher E. Turner and Employee
Representative Harold S. Noddin. Local 48 was represented by Business
Agent David L. Berg and the District by Albert J. Beliveau, Esq. The
parties were given full opportunity to examine and cross-examine
witnesses, introduce evidence, and make argument. Both parties filed
post-hearing briefs which have been considered by the Labor Relations
Board. The last brief was filed on January 4, 1984.
JURISDICTION
Local 48 is a "bargaining agent" within the meaning of 26 M.R.S.A.
Section 968 (5)(B)(Supp. 1983). The District is a "public employer"
as defined in 26 M.R.S.A. Section 962 (7)(Supp. 1983). The jurisdiction
of the Maine Labor Relations Board to hear this case and issue a
decision and order lies in 26 M.R.S.A. Section 968 (5)(C)(1974).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board
finds:
1. In April, 1983 District employees contacted Local 48 seeking
union representation. Local 48 sent some authorization cards to the
employees and on June 10, 1983, an employee mailed four signed authori-
zation cards back to Local 48. A Local 48 representative subsequently
met with the employees, and on July 6, 1983 petitions for a unit deter-
mination and an election were filed with this agency. Copies of the
petitions also were forwarded by Local 48 to the District on or about
July 5; the District Trustees discussed the petitions at a meeting on
July 6. On August 16, 1983 Local 48 and the District agreed upon an
appropriate bargaining unit composed of 5 District employees. A repre-
sentation election was held on September 1, 1984, and Local 48 was elected
-2-
bargaining agent by a 3 - 2 vote. Local 48 was certified by this agency
as the District employees' bargaining agent at the conclusion of the
election.
2. On or about May 1, 1983 the District hired Sandra Fish to work
as a custodian. On or about June 1, 1983 the Trustees' Personnel
Committee decided to give Fish a 50 cent per hour raise and full benefits.
This action was contrary to the provisions of the District's Personnel
Rules and Regulations, which state in pertinent part:
"An employee is initially hired for a probationary term
of three (3) months and will not be considered a regular full
time employee until the first day after the three (3) month
period has expired. The probationary employee shall not be
entitled to any of the non-salary benefits (ie, pension, sick
leave, vacation leave, etc.) during this period."
* * * * * * * * * *
"New hire, probationary employees will be paid at a rate
of $.50 (fifty cents) lower than the rate for the position,
except under exceptional circumstances, which shall be
reported to the Board of Trustees."
Fish signed a union authorization card shortly after being granted the
raise and benefits, but then later decided not to support the union.
3. The Trustees also decided on June 1, 1983 to promote Lead Operator
Marion Perry to the position of Working Foreman and to give Perry a $1.00
per hour raise. Perry previously had been the employees' spokesman in
discussions with the Trustees about raises and working conditions. Perry
and other employees met with the Trustees in November, 1982, and the Trustees
agreed to grant raises effective January 1, 1983 to all employees. The
June, 1983 raises for Fish and Perry was not discussed or granted at this
meeting, however. Perry did not support the union.
4. The District Trustees did not know when they granted the raises to
Fish and Perry that the employees were seeking union representation. The
Trustees first learned of the organizational effort on or about July 5,
when they received copies of the representation petitions from Local 48.
-3-
The Trustees on the Personnel Committee decided to give Fish the raise and
full benefits after only 30 days of employment because they felt she was
a superior employee. The promotion and raise for Perry had been planned
for about two months. The Trustees wanted to give Perry more responsibility
for handling personnel matters and day-to-day operations so that the
Superintendent would have more time for office work. The Working Foreman
position is included in the bargaining unit.
5. On September 2, 1983, the day after the representation election,
Superintendent Peter DeFilipp approached shop steward Bruce Aube, an operator
and lab technician for the District, and stated that the Trustees did not
take the employees' union vote lightly and that it was going to take at least
a couple of years to negotiate a contract. DeFilipp also said that the
District could give Perry and Fish another dollar per hour raise and that
there was nothing the union could do about it, and that the Trustees were
going to be bastards about everything now that the employees had gone union.
Aube, who had a longstanding personality conflict with DeFilipp, did not
pursue any of these points with DeFilipp during the conversation. At the
time of the hearing of this case, DeFilipp had resigned as the District's
Superintendent effective December 31, 1983.
6. At the end of the work day on or about September 14, 1983 Aube was
told that he had received a phone call from Local 48 business agent David
Berg during the day. Previously the District had allowed employees to
take personal phone calls during working hours. The District felt that in
1982 and early 1983 Aube had misused the phone for personal business, and
Aube had reimbursed the District for his phone calls. The record does not
show that any restriction had been placed on Aube's taking of phone calls
during the day, however.
DECISION
Local 48 charges that the District violated the Act by granting raises
to Sandra Fish and Marion Perry during the organizational effort, by
Superintendent DeFilipp's comments to Bruce Aube the day after the election,
-4-
and by failing to forward a call from a union representative to Aube during
working hours. We find that the raises were proper because the District
did not know when it granted them that the employees were organizing,
but that the Superintendent's comments and the failure to let Aube take the
call violated 26 M.R.S.A. Section 964(1)(A) and (B)(1974). We will order
remedies necessary to effectuate the policies of the Act.
1. The raises. In April, 1983 employees contacted Local 48 to see
about getting union representation. Local 48 sent some authorization cards
to the employees and on June 10, 1983 four signed cards were mailed back to
Local 48. On or about July 5 Local 48 forwarded copies of unit determination
and election petitions to the District, and on July 6, the petitions were
filed with this agency. On or about June 1, 1983 the District granted
custodian Sandra Fish a 50 cent per hour raise and full benefits, and promoted
lead operator Marion Perry to the position of Working Foreman and granted
him a $1.00 per hour raise. The granting of the raise and benefits to Fish
was contrary to the District's Personnel Rules and Regulations, which
provide in essence that employees must work a 3-month probationary period
before being eligible to receive the raise and benefits. As of June 1,
Fish had worked for the District for about 30 days. Local 48 was elected
bargaining agent at the September 1 representation election by a 3-2 vote.
We have of course held that the granting of unscheduled salary or
benefit increases during an organizational campaign is a prohibited practice
if done to influence the employees' choice of a bargaining representative:
"the conferral of employee benefits while a representation election is pending,
for the purpose of inducing employees to vote against the union, ...'interferes
with' the protected right to organize." Council 74, AFSCME v. M.S.A.D. No. 1,
MRLB No. 80-04 at 4 (Feb. 29, 1980), quoting NLRB v.Exchange Parts Co., 375
U.S. 405, 409 (1964).[fn1] Here the increases were granted during the organi-
zational campaign, were "unscheduled" in the sense they were not scheduled
_______________
1/ On the other hand, "predetermined" salary increases and benefit
improvements - i.e., those scheduled before the commencement of
organizational activity or those customarily granted to employees
at a certain time each year - must be granted even if implementation
occurs at some point during the organizational campaign. See, e.g.,
Council #74, AFSCME v. S.A.D. No. 1, MLRB No. 81-12 at 4-6 (March 11,
1981); NLRB v. Hasbro Industries, Inc., 672 F.2d 978, 982 1st Cir.
1982). -5-
prior to the advent of union activity, and were, in the case of Fish,
contrary to the personnel rules and regulations.
The record shows, however, that the District was not aware that
the employees were organizing when the raises were granted. Two members
of the Board of Trustees - Patrick DeFilipp and Gerard Boivin - testified
without contradiction that the District did not know about the organizational
effort when it granted the raises and that it did not become aware of the
effort until July 5 or 6, 1983, when Local 48 forwarded copies of the
representation petitions. According to the testimony, Fish was granted
the raise and full benefits after only 30 days of employment because she is
a superior employee, while the reason for Perry's promotion and raise, which
had been planned for about 2 months prior to June 1, was to give him more
responsibility for employee matters and day-to-day operations so that the
Superintendent could spend more time on office work. These are legitimate
reasons for the District's actions. We credit the Trustees' testimony
and find that since the District was unaware of the organizing activity,
the raises were not an improper attempt to influence the employees. See,
e.g., NLRB v. Gotham Industries, Inc., 406 F.2d 1306, 1310 (1st Cir. 1969).
Local 48's allegations that the raises violated Section 964(1)(A) and (B)
of the Act are hereby dismissed.
2. The Superintendent's comments. The Superintendent's statements to
the shop steward the day after the representation election obviously were
highly coercive and patently violative of Section 964 (1)(A).[fn2] Peter Defilipp
approached Aube and told him that the trustees did not take the union vote
lightly; that it would take at least a couple of years to negotiate a contract;
that the District could give Fish and Perry another dollar per hour raise
_______________
2/ Section 964 (1)(B) prohibits public employers from "[ilnterfering with,
restraining or coercing employees in the exercise of the rights guaranteed
in Section 963."
Section 963 states:
"No one shall directly or indirectly interfere with, inti-
midate, restrain, coerce or discriminate against public
employees in the free exercise of their rights, hereby given,
voluntarily to join, form and participate in the activities
of organizations of their own choosing for the purposes of
representation and collective bargaining, or in the free exercise
of any other right under this chapter."
-6-
and the union could do nothing about it; and that the trustees were going
to be bastards about everything. These statements are threats that the
District was going to delay the negotiating of a contract, was going to
deal directly with and reward favored employees, and was going to make
life difficult for employees who supported the union. Regardless whether
the comments were true or false, their intent plainly was to intimidate
the employees and interfere with their protected rights to support a union
of their own choosing and to engage in collective bargaining with their
employer. We have held on numerous occasions that such statements are
flagrant violations of Section 964 (1)(A). See, e.g., Bridgton Federation
of Public Employees v. Hamill, Case No. 81-54 at 6-9 (March 3, 1982);
Teamsters Local 48 v. Town of Oakland, MLRB No. 78-22 at 3-4 (May 22, 1978).
The District does not dispute the fact that the statements were highly
improper but instead urges in essence that the Superintendent is solely
responsible because the trustees were unaware that he intended to make the
statements and did not authorize the making of such statements. This
contention does not absolve the District because it is responsible for state-
ments and actions of its agents and representatives made in the context of
employee relations matters. See, e.g., Bridgton Federation of Public
Employees at 9 (Town is responsible for the "personal opinions" of its
Chief of Police and Road Commissioner). In addition, there is no evidence
that the trustees made any effort in front of the employees to repudiate
DeFilipp's statements clearly and unequivocally. Finally, the fact that the
Superintendent resigned his position as of December 31, 1983 does not moot
this issue. A cease and desist order is necessary to insure that the
District's agents and representatives do not make coercive statements to
the employees in the future.
3. The phone call from Local 48. We also find that the District
violated Section 964 (1)(A) and (B)[fn3] when it did not forward a phone call
_______________
3/ Section 964 (1)(B) prohibits public employers from "[elncouraging or
discouraging membership in any employee organization by discrimination
in regard to hire or tenure of employment or any term or condition of
employment."
-7-
to shop steward Aube from a Local 48 representative on or about September 14,
1983 during working hours. Up until the incident in question, the practice
at the District was to allow employees to take phone calls during working
hours. The call from David Berg was not forwarded to Aube when it arrived,
however, instead Aube was given a message at the end of the day that
Berg had called. The District felt that in 1982 and early 1983 Aube had
misused the phone for personal matters, and prior to the incident in
question Aube had reimbursed the District for his phone calls.
The District's failure to forward the call was contrary to past
practice. This is a particularly serious matter because the call was
from a union representative, so the failure to forward it can be seen as an
attempt to interfere with the employees' right to communicate with and
receive information from the union. It also can be seen as an attempt to
discriminate against Aube because of his status as shop steward. When
an employer changes its policy of allowing employees to take phone calls
during working hours by not allowing calls from union representatives, this
action constitutes improper interference and discrimination with regard to
a condition of employment. M.S.A.D. #45 v. M.S.A.D. #45 Teachers Association,
MLRB No. 82-10 at 1 (Jan. 12, 1982), enforced, Docket Nos. CV 82-34, et al.
(Kennebec County Superior Court June 9, 1982).
The District offers no valid reason why it did not forward the call;
the earlier incidents when Aube apparently misused the phone by making
long-distance calls are not relevant since this case does not involve any
attempt by Aube to make calls. There is no evidence that Aube or any other
employee was receiving an excessive number of calls during working hours or
that in-coming calls were otherwise disrupting the work of the District.
We therefore find that the District's failure to forward the call constitutes
interference and discrimination in violation of Section 964(1)(A) and (B).
We will order the District to cease and desist from failing to forward calls
from Local 48 representatives to the shop steward and to reinstate its
policy of allowing employees to take phone calls during working hours until
such time as this policy is changed through collective bargaining.
-8-
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 26 M.R.S.A. Section 968(5)(C)(Supp. 1983), it is ORDERED:
That the Rumford/Mexico Sewerage District, and its
representatives and agents:
1. Cease and desist from:
a) Making threatening or coercive statements to its
employees so as to interfere with, restrain or
coerce the employees in the free exercise of their
rights.
b) Failing to forward phone calls from union
representatives to the shop steward during working
hours.
c) In any other manner interfering with, restraining,
or coercing its employees in the exercise of rights
guaranteed them by Section 963 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act: immediately reinstate the
policy of allowing employees to take phone calls during
working hours until such time as this policy has been
changed through collective bargaining.
Dated at Augusta, Maine this 12th day of March, 1984.
-9-
MAINE LABOR RELATIONS BOARD
__________________________________________
Donald W. Webber, Alternate Chairman
__________________________________________
Thacher E. Turner, Employer Representative
The parties are advised of their
right pursuant to 26 M.R.S.A.
Section 968(5)(F)(Supp. 1983)
to seek review of this decision
by filing a complaint in accord- __________________________________________
ance with Rule 80B of the Rules Harold S. Noddin, Employee Representative
of Civil Procedure within 15
days of the date of the
decision.
-10-