MSEA v. State Development Office and State of Maine, No. 84-21, aff'd MSEA on 
behalf of Thomas Heels v. State Development Office, State of Maine and MLRB, CV-84-309, 
aff'd MSEA et al. v. State Development Office, 499 A.2d 165 (Me. 1985).

STATE OF MAINE                                         MAINE LABOR RELATIONS BOARD
                                                       Case No. 84-21
                                                       Issued:  July 6, 1984

                  Complainant,          )
   v.                                   )
   and                                  )
STATE OF MAINE,                         )
                  Respondents.          )

     This is a prohibited practices case, filed pursuant to Title 26 M.R.S.A.
Section 979-H(2) on February 24, 1984, by the Maine State Employees Association
("Union").  The Union alleges in its complaint that the State of Maine and
its agents in the State Development Office (hereinafter referred to jointly
as "State") interfered with, restrained, and coerced Thomas Heels in the
exercise of the rights guaranteed by 26 M.R.S.A. Section 979-B, in violation
of 26 M.R.S.A. Section 979-C(1)(A) by: denying Mr. Heels a merit increase,
placing Mr. Heels on a 90 day probation and later extending said period to
180 days, refusing to allow Mr. Heels to attend certain meetings, refusing
to provide new business cards to Heels after he had gained a new job title
through a reclassification, failing to pay Heels at the higher pay range to
which he became entitled after said reclassification, reprimanding Heels, and
discharging Mr. Heels from State service.  The Union's complaint further alleges
that the State discouraged membership in an employee organization by discrimin-
ating against Mr. Heels in his tenure of employment and other terms and conditions
of employment, in violation of 26 M.R.S.A. Section 979-C(1)(B).  The State
filed an answer to the complaint on March 16, 1984, denying that it had violated
any section of the State Employees Labor Relations Act ("Act"), 26 M.R.S.A.
Section 979, et seq., and moving for the dismissal of the complaint.

     A pre-hearing conference on the case was held on April 5, 1984, Alternate
Chairman Donald W. Webber presiding.  Alternate Chairman Webber issued a


Pre-Hearing Conference Memorandum and Order, on April 5, 1984, the contents of
which are incorporated herein by reference.

     Hearings on the case were conducted on May 2 and May 23, 1984, Chairman
Sidney W. Wernick presiding, with Employer Representative Thacher E. Turner and
Employee Representative Harold S. Noddin.  The Union was represented by Shawn
C. Keenan, Esq., and the State was represented by Julie M. McKinley, Esq.  The
parties were given full opportunity to examine and cross-examine witnesses,
introduce evidence, and make argument.  Both parties filed memoranda of law
which have been considered by the Board.


     The Maine State Employees Association is the certified bargaining agent,
within the meaning of 26 M.R.S.A. Section 979-H(2), for the State of Maine Pro-
fessional and Technical Services bargaining unit, which includes the job classi-
fication formerly held by Thomas R. Heels at the State Development Office.  The
State Development Office, an agency of the executive branch of the State of
Maine, and the State of Maine are "public employers," as defined in 26 M.R.S.A.
Section 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. Section

                               FINDINGS OF FACT

     Upon review of the entire record, the Labor Relations Board finds:

     1.  The Maine State Employees Association is the certified bargaining agent,
within the definition of 26 M.R.S.A. Section 979-A(1), for the State of Maine
Professional and Technical Services bargaining unit.

     2.  The State Development Office, an agency of the executive branch of
the State of Maine, and the State of Maine are the "public employer," as defined
in 26 M.R.S.A. Section 979-A(5).

     3.  Beginning in February of 1978, Thomas R. Heels was employed as a
Development Representative in the unclassified service of the State of Maine at
the State Development Office.  Mr. Heels had permanent status in said position,
which is included in the State of Maine Professional and Technical Services


bargaining unit, and he was a member of the Maine State Employees Association.
During his service at the State Development Office, Mr. Heels was a public
employee, within the definition of 26 M.R.S.A. Section 979-A(6).

     4.  During the fall of 1982, Mr. Heels approached Leslie E. Stevens, Director
of the State Development Office, and requested information and assistance in
filing for "reclassification" of his position.  In reality, Heels was seeking
reallocation of his position to a higher pay range.

     5.  In response to Heels' inquiries, mentioned in the preceding paragraph,
officials of the State Development Office gave Heels no information or assistance
in initiating a reclassification request with the State Department of Personnel.
At about this time, Heels learned that he himself could initiate the reclassi-
fication process.

     6.  On January 4, 1983, Mr. Heels submitted an Administrative Report of Work
Content form to officials of the State Development Office, thereby initiating the
reclassification procedure, mentioned in paragraph 4 above.  Mr. Stevens and Mr.
Bolduc signed the form on March 3, 1983.

     7.  On January 14, 1983, Mr. Heels was orally given an annual performance
evaluation by his immediate supervisor, Stephen A. Bolduc, the Director for
Industrial and Community Development.  Mr. Heels' anniversary date with the
agency was February 21, 1983 and, in the past, Heels had usually been evaluated
at approximately this same length of time prior to his actual anniversary date.
Although concluding that Heels has performed at a "satisfactory" or "near satis-
factory" level for his position, Mr. Bolduc informed Mr. Heels that he would be
recommended for a merit increase.

     8.  On January 21, 1984, Mr. Heels was summoned to Mr. Stevens' office and,
in the presence of Mr. Bolduc, Mr. Stevens told Mr. Heels: that he did not
agree with Bolduc's evaluation; that he was denying Heels' merit increase; that
Heels would be placed on a reevaluation period for 90 days; that Heels' perform-
ance would be evaluated monthly; and that Heels would be terminated, if his
performance did not improve.

     9.  Mr. Stevens had been Mr. Heels' immediate supervisor and, as such, had
completed Heels' performance evaluations during the three previous years.  The
first time that Stevens evaluated Heels, the former had only been with the
agency for one or two months; therefore, he merely followed the previous year's
evaluation of Heels as that year's evaluation and granted a merit increase.


The second time that Stevens evaluated Heels, the evaluation was somewhat lower
but a merit increase was, nevertheless, recommended.  Stevens' third evaluation
of Heels was mediocre or "borderline"; however, Stevens gave Heels the benefit
of the doubt and again recommended that he receive a merit increase.

    10.  Mr. Heels requested a written copy of the performance evaluation from
Mr. Bolduc on January 28, 1983; however, it was not produced until February 18,
1983.  Attached to the performance evaluation delivered to Mr. Heels was a
memorandum from Mr. Stevens confirming the statements mentioned in paragraph
8 hereof.

    11.  While signing the evaluation form on February 22, Mr. Heels stated
in writing thereon that he did not agree with the evaluation.  Mr. Heels requested
representation from Union Field Representative John Graham and, on February 25,
Mr. Graham sent a notice to Mr. Stevens that Mr. Heels was appealing his performance
appraisal, including the denial of his merit increase.

    12.  On March 30, 1983, Mr. Heels met with Mr. Stevens and one item discussed
concerned the former's election to the Board of Directors of the Northeastern
Industrial Developers Association.  Mr. Heels requested that his election be
published in the weekly Governor's Report.  Mr. Stevens refused to approve publi-
cation, although a co-worker's attendance at a basic economic development course
in North Carolina was published.  That afternoon, Mr. Heels' secretary presented
him airline tickets for a trip to Washington, D. C., scheduled for the next day.
Knowing nothing about it, Mr. Heels asked Mr. Bolduc about the purpose of the
trip and Mr. Bolduc said he knew nothing.  When Heels asked Mr. Stevens about
the trip, Mr. Stevens made a phone call and then told Heels that he did not have
to go.

    13.  The professional employees of the State Development Office, including
Mr. Heels, customarily attended the monthly meetings of the Industrial Develop-
ment Council of Maine.  During 1982, Heels attended nearly all of the I.D.C.M.
meetings, since they afforded a convenient opportunity to maintain contact with
developers from throughout the State of Maine.  During the months of March,
April, June, and July, 1983, Mr. Heels, due to the crush of other business and
due to a conscious decision by Mr. Bolduc, did not attend said meetings.  Mr.
Bolduc felt that other members of the office would be better representatives
thereof at public meetings.

    14.  On April 15th, Mr. Heels and Mr. Bolduc received a notice from the


Department of Personnel that Heels' position would be upgraded to the Development
Project Officer classification with a salary increase from range 22 to range 24.
Like the former classification, the newly upgraded position is within the
Professional and Technical Services bargaining unit.

    15.  On April 19, a letter of appreciation was sent to Mr. Heels by Richard
Wagner, Jr., Director for Industrial and Community Services at Central Maine
Power Company.  The letter characterized Mr. Heels' services, especially his
maintenance of an available manufacturing space list, as "absolutely essential
to Maine's Industrial Development and Industrial recruiting effort" and further
described Heels' personal "expertise" as "invaluable." Although this letter was
circulated to both Mr. Stevens and Mr. Bolduc, neither gave it appreciable weight
in evaluating Mr. Heels' performance.

    16.  A letter dated May 27 was sent to Mr. Stevens by Frank Piveronas,
Director of Marketing for Century 21 Realty.  The letter characterized Mr. Heels
as "very helpful and professional" and credited him with attracting a foreign
investor to develop some property in Maine.  Mr. Stevens gave this letter some
consideration in evaluating Mr. Heels' performance.

    17.  During this period of time, Mr. Heels was informed that there was no
funding available to pay the salary increase for the recently reclassified position
and Mr. Heels never received compensation at range 24.  Although the reclassified
position had the changed job title of Development Project Officer, both Mr. Stevens
and Mr. Bolduc continued to refer to Heels under the title of his position prior
to reclassification, Development Representative.  Mr. Heels' request, that he be
provided with new business cards to reflect the title change, was denied by Mr.
Bolduc, on the grounds of budgetary constraints in the agency.

    18.  In June of 1983, Mr. Heels was denied permission, by Mr. Bolduc, to
attend a meeting of the N.I.D.A. Board of Directors to be held in Hyannis,
Massachusetts.  The reason for Mr. Bolduc's decision was the increased work
load, which the office experienced at that time of year.

    19.  Mr. Heels received a June 9 memorandum from Mr. Stevens on the subject
of Heels' reevaluation period.  The memo confirmed that the original reevaluation
period, of February, March, and April, had been extended to July 31, 1983, and
that Heels would be dismissed if his performance did not improve during this interim.
Referring to the recent reclassification of the job from range 22 to 24, the
memo stated that this new class required "a more demanding set of evaluation


criteria."  Mr. Heels was further admonished about making "disparaging remarks
about the State Development Office and its administration," and that any such
further behavior would result in "immediate dismissal."

    20.  Mr. Heels met with Mr. Bolduc on June 10 and briefly discussed his
job performance.  During the meeting, Mr. Bolduc indicated that Heels' atti-
tude had Changed for the better.

    21.  On June 13, 1983, the chairman of the Agency Appeals Board, which had
been constituted to hear Mr. Heels' performance evaluation appeal, wrote to
Mr. Stevens and directed him to file a written response to the points raised
in the Union's appeal letter of February 25th.  Mr. Stevens presented his
rebuttal in a letter dated July 1, 198@.

    22.  A written reprimand dated June 23, 1983, was placed in Mr. Heels
personnel file by Mr. Bolduc.  Heels, who took sick leave on June 13 and 14,
was disciplined for failing to obtain a substitute representative to attend
a June 14th meeting.

    23.  During the period between June 24 and July 1, 1983, while Mr. Heels
was on vacation, an all-day meeting of the entire State Development Office
staff was held.  The purpose of this "Annual Planning Day" was to review the
past year and to set goals and objectives for the ensuing year.  Since it was
essential for Heels' performance of his duties to know what had transpired at the
Annual Planning Day and because no minutes were kept nor summary memorandum
prepared, Mr. Bolduc approached Mr. Heels and told him what had gone on at the

    24.  On July 21, 1983, a grievance letter, protesting the June 23rd letter
of reprimand, was sent to Mr. Stevens by Union Field Representative John Graham.

    25.  On July 22, Mr. Bolduc and Heels' co-worker, Ms. Manuel, attended an
all-day meeting in Portland with the "Marketing Group."  Although Mr. Heels
had previously been included in these meetings, he was not asked to attend.
On July 25 Heels was sent to Poland, Maine, to meet with the Town Manager to
discuss community development for the first time.  During July of 1983, Heels
had completely run out of business cards and asked Business Assistance Division
Director Robert Hird to have new ones printed; Hird denied the request.

    26.  Mr. Heels was given a memorandum on the subject of his job performance
by Mr. Bolduc on August 1, 1983.  The memo states that Heels' quantity and
quality of work had not improved,., although Heels' attitude did not show any


repetition of the "behavior referred to in the June 9 memo."  The note concluded,
also in reference to the June 9 memo, that expected improvement had "not been

    27.  On August 4, 1983, Mr. Stevens responded to Mr. Graham's grievance
letter, mentioned in paragraph 24 hereof, by denying the Union's request to
withdraw the written reprimand of June 23rd.
    28.  On August 11, 1983, a final Notice of Hearing was issued by the Agency
Appeals Board, noted in paragraph 21 above, in the performance evaluation
matter.  Mr Bolduc appeared on behalf of the State Development Office at the
hearing, on August 16.  Mr. Bolduc stated thereat that, although he had found
Heels' performance to be "satisfactory" or "near satisfactory," Mr. Stevens
expected "superior performance"to justify awarding a merit increase.  Appeals
Board members and Union Field Representative Ron Ahlquist questioned the agency's
attempt to place Heels on "probation," referring to Heels' performance reevaluation

    29.  On August 26, 1983, Mr. Stevens summoned Mr. Heels to his office and,
without giving any reason, demanded Heels' resignation.  Heels said that he
would think about it; however, upon returning to the office after lunch, he
refused to resign.  Mr. Stevens immediately handed Mr. Heels a memorandum,
which stated, in its entirety: "Your employment at the State Development Office is
terminated as of Friday, September 23, 1983.  You are not required to report
to work as of the date of this memo."

    30.  On August 30, 1983, a grievance was filed by Mr. Graham of the Union
protesting the discharge and asking for Mr. Heels' reinstatement.  On September 8,
Mr. Stevens denied the grievance in writing but still offered no reason for the

    31.  The Agency Appeals Board rendered a decision awarding Mr. Heels his
merit increase on September 14, 1983.  Mr. Stevens' action denying said increase
was overturned on the grounds that neither Mr. Bolduc nor Mr. Stevens had main-
tained any documentation of Mr. Heels' alleged performance problems during
the rating period and had, thereby, failed to give Heels proper notice of
their expectations.

    32.  On September 19, 1983, the Governor's Office of Employee Relations up-
held the discharge of Thomas Heels on the grounds that he served "at the pleasure"
of the Director of the State Development Office, under 5 M.R.S.A. Section 7002


(2)(A).  Subsequent to the discharge and prior to the hearing in this matter,
no substantive reason was offered by either of the Respondents for the firing
of Mr. Heels.  On September 29, 1983, the Union demanded arbitration on both
the June 23 reprimand and the September 23 discharge.  The State still claims
that the discharge grievance is not arbitrable.

    33.  The actions of the State, noted in paragraphs 7, 8, 10, 12, 13, 15,
16, 17, 19, 22, 23, 25, 26, 28, 29, 30, and 32 hereof, were not the result of
Mr. Heels' exercise of any rights guaranteed under the Act.  Despite a chrono-
logical coincidence between Mr. Heels' actions and those of the State, there
was no causal connection between the two.

    34.  Mr. Heels' former position continues to be compensated at Range 22.
Once the funds become available, Mr. Heels and the person hired to replace him
will receive payment, in the amount of the difference in pay between Range 22 and
Range 24 plus interest due thereon, retroactive to the date of the filing of the
reclassification request, to reflect the granting of said reclassification.


     The Union has alleged that, in various aspects of its relationship with
Thomas R. Heels during 1983, the State violated two sections of the Act.  The
Union's contentions are that the State: (1) violated 26 M.R.S.A. Section 979-C
(1)(A) by interfering with, restraining or coercing Mr. Heels in the exercise
of the rights guaranteed in Section 979-B of the Act and (2) transgressed the
provisions of 26 M.R.S.A. Section 979-C (1)(B) by discouraging membership in an
employee organization by discriminating against Mr. Heels in regard to his
tenure and other terms and conditions of employment.  Since evaluation of
the merits of each of the violations alleged requires a different analysis,
the Union's contentions will be addressed separately below.

     The Union's first averment is that the various actions of the State Devel-
opment Office, relating to Mr. Heels during 1983, violated 26 M.R.S.A. Section
979-C(1)(A).  The standard used in considering alleged violations of said
section has been outlined by the Board as follows:

     "A finding of interference, restraint, or coercion does not
     turn on the employer's motive or on whether the coercion
     succeeded or failed, however, but is based on 'whether the
     employer engaged in conduct which, it may reasonably be


     said, tends to interfere with the free exercise of employee
     rights under the Act.' NLRB v. Ford, 170 F.2d 735, 738
     (6th Cir. 1948); Teamsters Local 48 v. Town of Oakland, MLRB
     No. 78-30 at 3 (Aug. 24, 1978)."

Maine State Employees Assoctation v. Department of Human Services, MLRB No.
81-35, at 4-5 (June 26, 1981).  In the instant case, we have been unable to
find that the State Development Office management had any subjective intent to
violate Section 979-C(1)(A) in any of the actions taken in connection with
Mr. Heels.  Secondly, the agency's actions did not, in fact, deter Mr. Heels
from filing grievances or from otherwise exercising his rights under the
Act.  Although neither of these facts controls the result of our inquiry,
both are relevant within the facts of this case.  The third relevant fact in
this case is our finding that, although there was a chronological coincidence
between Mr. Heels' actions and those of the State, we find no causal connection
between the two.  The uncontroverted evidence was that Mr. Heels' job performance
had been rated as being only marginally satisfactory, for the two years prior to
the 1983 evaluation period; that his work was "satisfactory" or "near satisfactory"
in his 1983 evaluation; and, for that reason, was denied a merit increase and
was placed on a reevaluation period to afford him an opportunity to improve his
performance.  The evidence further established that Heels' work did not improve
during the reevaluation period and, therefore, his employment was terminated.
Under all of the circumstances of this case, it cannot reasonably be said that the
State's actions tended to interfere with the free exercise of rights under the
Act.  We hold, therefore, that the acts of the State, cited in our foregoing findings
of fact and concerning Mr. Heels, did not violate Section 979-C(l)(A) of the Act.

     The Union's second contention is that the State discouraged membership in
an employee organization by discriminating against Mr. Heels in regard to
his tenure and other terms and conditions of employment, in violation of 26
M.R.S.A. Section 979-C(1)(B).  The Union's premise is that the employer's
actions were taken in retaliation for the employee's engagement in protected
activity under the Act and the State avers that its conduct was motivated by
purely legitimate personnel reasons.  This is, therefore, a classic "dual motive"
discipline situation.  Under similar "dual motive" circumstances alleging vio-
lations of the parallel section of the Municipal Public Employees Labor Rel-
ations Act, 26 M.R.S.A. Section 964(1)(B), the Board has adopted and applied,

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as the controlling standard therein, the "Wright Line" test developed by the
National Labor Relations Board.  Allen C. Holmes v. Town of Old Orchard Beach,
MLRB No. 82-14, at 10-11 (Sept. 27, 1982), aff'd.  Town of Old Orchard Beach v.
Old Orchard Beach Police Patrolmen's Assn., York Super. Ct., Docket No. CV-82-
613 (Oct. 27, 1983); Russell B. Ritchie v. Town of Hampden, MLRB No. 83-15, at
5-6 (July 18, 1983).  Subsequent to the Board's adoption thereof, use of the
"Wright Line" test in the "dual motive" discipline context was approved
by the Supreme Court of the United States.  NLRB v. Transportation Management
Corp., ______ U.S. ______, 103 S.Ct. 2469, ______ L.Ed.2d ______ (1983).
Since the language of Section 979-C(1)(B) is identical with that in 26 M.R.S.A.
Section 96(1)(B) and because the conduct prohibited by both sections is the
same, we hold that the "Wright Line" test is the proper standard to be applied
in considering alleged violations of Section 979-C(1)(B) of the Act in "dual
motive" circumstances.  Mr. Justice White, writing for a unanimous Court, has
outlined the "Wright Line" test as follows:

     "The Board held that the General Counsel, of course, had the burden
     of proving that the employee's conduct protected by Section 7 was a
     substantial or a motivating factor in the discharge.  Even if this
     was the case, and the employer failed to rebut it, the employer
     could avoid being held in violation of Sections 8(a)(1) and 8(a)(3)
     by proving by a preponderance of the evidence that the discharge
     rested on the employee's unprotected conduct as well and that the
     employee would have lost his job in any event.  It thus became clear,
     if it was not clear before, that proof that the discharge would
     have occurred in any event and for valid reasons amounted to an
     affirmative defense on which the employer carried the burden of
     proof by a preponderance of the evidence."

Transportation Management Corp., supra, 103 S.Ct., at 2473 (footnotes omitted),
cited and adopted by the Board, Jeannie Ross v. Portland School Committee,
MLRB No. 83-04, at 19 (Aug. 29, 1983).  Since there is no General Counsel in
practice before this Board, the complainant must be substituted for the
General Counsel in the above description.

     In applying the first prong of the "Wright Line" test, we must first deter-
mine whether the Union has made a prima facie showing that the State's conduct
complained of was motivated by Mr. Heels' exercise of rights protected by the
Act.  If such a prima facie case was established, we must examine whether the
State was able to successfully rebut it.  The thrust of the Union's position
is that the State's actions, during 1983 in connection with Mr. Heels' employ-
ment, particularly the denial of a merit increase, the placement on a performance


reevaluation period, the issuance of a written reprimand, and the termination
of employment, all resulted from Mr. Heels' request to have his position
reclassified and his filing of two grievances prior to his discharge.  Assuming,
arguendo, that Heels' request for reclassification and his filing of the two
grievances constitute protected activities under the Act, our careful examination
of all of the relevant facts has failed to reveal any evidence of a causal
connection between Heels' actions and those of the State.  Merely because the
conduct cited in the Union's complaint happened to coincide with Mr. Heels'
undertaking to have his position reclassified and the subsequent filing of griev-
ances, that, without more, does not establish a prima facie case of discrimination.
Since the Union has failed to come forward with a prima facie showing that Mr.
Heels' conduct, if it was protected activity, was a motivating factor in the State's
actions herein, we decide that the State did not violate Section 979-C(1)(B) of the
Act in this matter.


     On the basis of the foregoing findings of fact and by virtue of and pur-
suant to the provisions of the powers granted to the Maine Labor Relations Board
by the provisions of 26 M.R.S.A. Section 979-H(3)(Supp. 1982), it is hereby

     That the prohibited practices complaint, filed by the Maine
     State Employees Association on February 24, 1984, in MLRB
     Case No. 84-21, be and hereby is dismissed.

Dated at Augusta, Maine this 6th day of July, 1984.

                                       MAINE LABOR RELATIONS BOARD

The parties are advised of             /s/___________________________________
their right, pursuant to               Sidney W. Wernick, Chair
26 M.R.S.A. Section 979-H
(7)(Supp. 1982), to seek a
review by the Superior Court
of this decision by filing a           /s/___________________________________
complaint in accordance with           Thacher E. Turner, Employer Representative
Rule 80B of the Rules of
Civil Procedure within 15
days of the date of this
decision.                              /s/___________________________________
                                       Harold S. Noddin, Employee Representative

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