Teamsters Union Local #340 v. Rangeley Lakes School Region, Case No. 91-22 (Interim Order, Oct. 7, 1991), (Decision and Order, Jan. 29, 1992) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-22 Issued: October 7, 1991 _______________________________ ) TEAMSTERS UNION LOCAL #340, ) ) Complainant, ) ) v. ) INTERIM ORDER ) RANGELEY LAKES SCHOOL REGION, ) ) Respondent. ) _______________________________) This prohibited practice case was initiated by a complaint filed by Teamsters Union Local #340 (hereinafter referred to as "Union") with the Maine Labor Relations Board ("Board"), on May 14, 1991. Pursuant to the Prehearing Conference Memorandum and Order dated June 28, 1991, the Board scheduled an evidentiary hearing to be conducted in this case on July 18, 1991. The Board gave the parties notice of the hearing date by letter to the parties' representatives dated July 8, 1991. At 10:00 a.m. on July 18, 1991, the Board convened the evidentiary hearing in the above-captioned matter. Since no representative of the Complainant appeared at the July 18th hearing, the Board issued an Order on that date, the contents of which are incorporated herein by reference. The Union appealed the Board's Order of July 18, 1991, by letter filed on July 30, 1991.1 The Union alleges that its failure to appear at the July 18, 1991, hearing was due to excusable neglect and seeks to have the Order of July 18, 1991, vacated. On August 29, 1991, the Board, Alternate Chair Pamela D. Chute pre- siding, accompanied by Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson, conducted a hearing on the Union's request. The Union was represented by Trustee and Business Agent Terrence J. Hanlon, and the Rangeley Lakes School Region ("Employer") was ___________________________________ 1While framed as an appeal, it was treated as a request for a hearing and reconsideration of the order. -1- represented by Ronald E. Colby, III, Esq. The parties were afforded full opportunity to appear, to present testimonial and documentary evidence, to cross-examine witnesses, and to present oral argument. Neither party sought to file written post-hearing argument. The Board deliberated the matter immediately upon adjournment of the hearing. JURISDICTION The Board's jurisdiction to hear and resolve this matter lies in 26 M.R.S.A. 968(5) (1988) and Board Rule 4.07(B). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. Teamsters Union Local #340, the Complainant, is an organization whose primary purpose is the representation of employees in their employment relations with employers, within the meaning of 26 M.R.S.A. 962(2). 2. The Rangeley Lakes School Region is a public employer, within the meaning of 26 M.R.S.A. 962(7). 3. The prehearing conference in this case was conducted on July 21, 1991. 4. The Prehearing Order, dated June 28, 1991, provided, in part, that "[ilt was stipulated that if either party wishes to add additional wit- nesses or exhibits, each party will notify in writing the other party ten (10) days prior to the scheduled hearing date and also will notify the Maine Labor Relations Board." 5. By letter dated July 2, 1991, Union representative Hanlon notified the Respondent and the Board that the Union would be calling an additional witness at the evidentiary hearing. 6. By letter dated July 3, 1991, the Respondent's attorney notified the Board and the Union that the Employer would be calling additional wit- nesses and offering additional documents as exhibits at the evidentiary hearing. 7. By letter dated July 8, 1991, the Board notified the parties of the date, time, and location of the evidentiary hearing on the merits of -2- the instant case. 8. Copies of the letters to the parties' representatives mentioned in the preceding paragraph were sent Certified Mail, Return Receipt Requested, and were received by the United States Postal Service in Augusta, Maine, on July 8, 1991. 9. The Respondent's attorney received the letter noted in paragraph 7 hereof on July 9, 1991. 10. The United States Postal Service Delivery Notice concerning the letter mentioned in paragraph 7 hereof, which was placed in the Union's post office box at the South Portland Post Office, states, in part: "[y]ou may pick up your mail after ___m. (Date) 7/13/91." 11. July 13, 1991, was a Saturday and the next business day was Monday, July 15, 1991. 12. Every business day, a secretary from the Union goes to the South Portland Post Office and collects the mail from the Union's post office box. 13. On Monday, July 15, 1991, a secretary from the Union collected the Union's mail from the South Portland Post Office; however, the Delivery Notice mentioned in paragraph 10 hereof either was not in the Union's post office box or the secretary did not see the notice in the box. 14. In an affidavit dated August 16, 1991, Union Secretary Margaret Timmons stated that, on or about July 15, 1991,2 the executive director of the Board called the Union office and asked to speak with Mr. Hanlon. Ms. Timmons told the executive director that Mr. Hanlon was on vacation this week. The executive director then said that it was very important that he speak with Mr. Hanlon as soon as possible. Ms. Timmons then told the executive director that Mr. Hanlon was unreachable because he was camping in a tent up-country and was not near a phone. Ms. Timmons stated ___________________________________ 2Pursuant to the provisions of 5 M.R.S.A. 9058 and after notice to the parties, the Board took official notice that, as part of the shutdown of Maine State government, the office of the Board was closed on July 1, 2, 3, 5, 11, 12, 15 and 16, 1991. -3- that she did not expect to hear from Mr. Hanlon all week. 15. In an affidavit dated August 30, 1991, Union Secretary Stacy Nunley stated that, on or about July 16, 1991, the executive director of the Board called the Union office and asked for Mr. Hanlon. Ms. Nunley told the executive director that Mr. Hanlon was on vacation. The executive director then said, "that's o.k., I will talk to him when I see him on Thursday." 16. On July 16, 1991, Union secretary Stacy Nunley signed for and received the letter mentioned in paragraph 7 hereof at the South Portland Post Office. 17. When mail is received at the Union office, it is opened by a secretary, two copies are made, the original is placed on the desk of the business agent to whom it is addressed, one copy is placed in the appropriate file, and the other copy is routed to the Union President. At the end of each week, the Union President reads copies of all corre- spondence received by the office in order to keep informed of all develop- ments affecting the operation of the Union. 18. When a Union business agent goes on vacation, another business agent is assigned to handle the vacationing agent's emergency telephone calls. No one is assigned to read a vacationing business agent's mail. 19. When the letter mentioned in paragraph 7 hereof was brought to the Union office on July 16, 1991, the procedure outlined in paragraph 17 above was followed. 20. After receiving the scheduling letter noted in paragraph 7 on July 16, 1991, no one from the Union called or otherwise contacted the Board in connection with the scheduled hearing. 21. On July 18, 1991, the Board met at 10:00 am. in the Labor Board Conference Room, Room 714 of the State Office Building in Augusta, for the purpose of conducting the hearing on the merits in the instant case. 22. Neither a business agent nor any other representative of the Complainant nor any of the Complainant's witnesses appeared at the July 18th hearing. The Respondent's attorney and four witnesses, Mr. Marks, Mr. Welch, -4- Ms. Raymond, and Mr. Wilcox, were present at the July 18th proceeding. 23. Upon realizing that the Complainant had failed to appear for the scheduled hearing on July 18, 1991, the executive director telephoned the Union office in an attempt to learn why no Union representative was present at the hearing. 24. Upon returning to the hearing room, the executive director reported that he had just called the Teamsters office and was told by a secretary that Mr. Hanlon would not be appearing at the hearing because the Union had just received the Board's notice of hearing two days earlier, Mr. Hanlon was on vacation all week, and he could not be reached because he was camping up north and was not near a phone. 25. The Board then recessed the hearing, deliberated over the various options available and reconvened the hearing. 26. The Respondent then moved that the Complainant be defaulted for its failure to appear. 27. The Board then announced its decision on the motion, and the deci- sion was incorporated into the Board Order issued on July 18, 1991. 28. Late in the afternoon of July 18, 1991, the President of the Union telephoned the Board office and stated that Mr. Hanlon was on vacation, that none of the Union's other business agents had known about the sched- uled hearing, and that the Union had only received notice of the hearing two days earlier. 29. On July 24, 1991, Respondent's counsel sent the Union the Respondent's list of costs, expenses, and counsel fees incurred in attending the July 13th hearing pursuant to the July 18th order. 30. On July 25, 1991, the Complainant mailed a draft to the Respondent's attorney as payment in full of the itemized statement men- tioned in the preceding paragraph. 31. On July 30, 1991, the Complainant filed the instant request for hearing and reconsideration with the Board. -5- DISCUSSION At issue in the instant proceeding is whether the Union's failure to appear at the scheduled evidentiary hearing on July 18, 1991, was due to excusable neglect. We have adopted the definition of excusable neglect developed by the Supreme Judicial Court in interpreting the court rule that is analogous to Board Rule 4.07(B). In this context, excusable neglect is a failure to act whose cause is beyond the control of the party, or the party's representative, that is required to act in a particular instance. Where the neglect is due to conditions within the control of the party charged to act, some extraordinary circumstance must be established to warrant excuse of such neglect. Maine State Employees Association v. Baxter State Park Authority, No. 84-20, slip op. at 14, 7 NPER 20-15014 (Me.L.R.B. May 16, 1984), citing State v. One 1977 Blue Ford Pick-Up Truck, 447 A.2d 1226, 1230-31 (Me. 1982). In the instant case we are not faced with a situation where the Union intentionally failed to appear for the scheduled hearing. The record establishes that Mr. Hanlon, the Union business agent assigned to the case, had no knowledge of the hearing date. Second, the United States Postal Service took an inexplicably long time to deliver the Board's notice of hearing to the Union, especially when one considers that the Respondent received its copy of the letter the day after it was posted by the Board. While such substantial delay undoubtedly contributed to the Union's neglect in this matter, nevertheless, the ultimate responsibililty for the Union's failure to act lies with the Union's internal office procedure concerning the handling of its business agents' mail, particularly when said agents are on vacation or are otherwise out of the office. Once the Board's notice was received by the Union's office staff, it was incumbent upon the Union to notify the Board that Mr. Hanlon would be unavailable and to request a continuance. In the circumstances, such a request would undoubtedly have been granted. In One 1977 Blue Ford Pick-Up Truck, cited by the Board in Baxter Park, supra, an attorney failed to file a timely notice of appeal from a judgment because, although the judgment had been received by the attorney's office, the office staff failed to bring the judgment to the attorney's attention. In that case, the Law -6- Court stated: We find nothing in the nature of an event or circumstance so extraordinary in this case as to excuse the neglect of appellant's counsel to provide suitable office procedures to cause the judgment to be brought to counsel's attention once it was delivered into the custody and control of counsel's office. It is incumbent upon any attorney to institute internal office procedures sufficient to assure that judgments are properly dealt with once they are delivered into the custody of office personnel subject to the control of counsel. The failure to take necessary steps, to that end, even during periods of unu- sual circumstances in an attorney's office, is not an acceptable excuse for any resulting failure to obtain personal knowledge of the entry of judgment on the part of counsel. 447 A.2d at 1231. While bargaining agent offices are not, by and large, staffed by attorneys, such employee organizations' relationships with bargaining unit members that they represent are similar to those between attorneys and their clients. We believe that bargaining agents have the same obligation to institute effective internal office procedures to facilitate their representation duties as do attorneys. The Union's failure to assign someone to read incoming mail addressed to a business agent who will be out of the office for a period of time, to determine whether such mail requires an immediate response or other action within a short period of time, was the direct cause of the Union's neglect in this case. Such cause was within the exclusive control of the Union. The fact that Mr. Hanlon was on vacation when the Board's hearing notice was received is not an "extraordinary circumstance" that would excuse the Union's neglect. As employees, business agents will go on vacation periodically, and hearing notices from the Board or other correspondence requiring an immediate response may well be received by the Union during a business agent's absence. In light of the Union's internal mail handling procedure, the Union's failure to act in this case was not only forseeable but also inevitable. The Union's attempt to shift responsibility for its failure to act to the executive director was not persuasive. First, the Union accounts for approximately one-quarter of the Board's business; therefore, a Board staff member, calling the Union office on one case, would not necessarily connect information received during that call to other pending matters. Second, -7- the executive director's conversation with Ms. Nunley did not necessarily result in the conclusion that Mr. Hanlon would not be appearing for the scheduled hearing. People often go on vacation for periods other than a full week at a time. Third, in light of what the executive director stated when he returned to the hearing room on July 18th, we believe that the conversation reported in paragraph 14 of our findings of fact occurred on July 18th. In sum, we conclude that the Union's failure to appear at the Board hearing on July 18, 1991, was not due to excusable neglect within the meaning of Board Rule 4.07(B). 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. 968(5), it is hereby ORDERED: 1. The request for reconsideration filed by Teamsters Union Local #340 on July 30, 1991, is hereby denied. 2. The Order of July 18, 1991, is hereby affirmed. Dated at Augusta, Maine, this 7th day of October, 1991. MAINE LABOR RELATIONS BOARD /s/________________________________ Tne parties are hereby advised Pamela D. Chute of their right, pursuant to 26 Alternate Chair M.R.S.A. 968(5)(F) (1988), to seek review of this Interim Order by the Superior Court. To initiate such a review an /s/_______________________________ appealing party must file a Howard Reiche, Jr. complaint with the Superior Employer Representative Court within fifteen (15) days of the date of receipt hereof, and otherwise comply with the requirements of Rule 80C of the /s/________________________________ Maine Rules of Civil Procedure. George W. Lambertson Employee Representative -8- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-22 Issued: January 29, 1992 ________________________________ ) TEAMSTERS UNION LOCAL #340, ) ) Complainant, ) ) v. ) DECISION AND ORDER ) RANGELEY LAKES SCHOOL REGION, ) ) Respondent. ) ________________________________) On May 3, 1991, Complainant Teamsters Union Local #340 (Teamsters) filed a prohibited practice complaint with the Maine Labor Relations Board (Board) alleging that the Respondent Rangeley Lakes School Region (Region) has violated 26 M.R.S.A. 963 and 964 (1)(A) through (D) (1988), by terminating the employment of Custodian/Maintenance/Bus Driver Edward Smith, Sr., for his participation in union organizational activity pro- tected by the Maine Municipal Public Employees Labor Relations Law (Municipal Law), 26 M.R.S.A. 961 through 974 (1988 & Supp. 1991). The Complaint alleges that Smith was a union supporter, that the Region knew of Smith's activity as a union supporter through conversations with him, and that Smith's employment was terminated for that activity. The Teamsters request that the Region be ordered to cease and desist, that Smith be made whole in pay, benefits and seniority, and that the Board award any other appropriate relief. The Region's May 17, 1991, Response denies any violation of the Municipal Law, states that the Region first learned of Smith's union affiliation or activity six days after his ter- mination and asserts that Smith was terminated for falsifying time sheets and for not completing maintenance records as requested. The Region requests dismissal of the complaint and reimbursement of its costs. On Friday, June 21, 1991, Alternate Chair Pamela D. Chute conducted a prehearing conference in this matter. The June 28, 1991, Prehearing Conference Memorandum and Order issued by Alternate Chair Chute is incor- porated in and made a part of this Decision and Order. -1- On July 18, 1991, the Board, consisting of Alternate Chair Pamela D. Chute, presiding, Howard Reiche, Jr., Employer Representative, and George W. Lambertson, Employee Representative, issued an Interim Order providing for conditional dismissal of the complaint with prejudice, based on the Teamsters' failure to appear at the evidentiary hearing scheduled for that day. On July 30, 1991, the Teamsters avoided dismissal by submitting payment of the costs, expenses and attorney's fees respecting the Region's appearance on July 18. The Teamsters also requested reconsideration of the Board's Order. On October 7, 1991, the Teamsters' request for reconsideration was denied. An evidentiary hearing was conducted by the Board consisting of Alternate Chair Pamela D. Chute, presiding, Employer Representative Howard Reiche, Jr., and Employee Representative George W. Lambertson on October 7, 1991. The Teamsters were represented at hearing by Teamsters Union Local 340 Trustee and Business Agent Terrence J. Hanlon. The Region was repre- sented at hearing by Attorney Ronald E. Colby, III. The Teamsters called and elicited testimony from the following witnesses: Zelda Clark, Karalee Savage, Thomas Haggan, Gerald Bean, Quenten Clark, Ralph Brewer and Ron Taylor. The Region called and elicited testimony from Kenneth Marks and Robert Welch. Upon request, the witnesses in the cause were sequestered during the hearing. The Teamsters made an opening statement and closing oral argument. The Region made closing oral argument only. Neither party filed briefs. The transcript of the proceedings was finished October 30, 1991, and the case was deliberated by the Board on November 14, 1991. JURISDICTION The Board has jurisdiction to hear evidence and determine the issues in this case and to render a decision and order pursuant to 26 M.R.S.A. 968(5)(A) (1988). Respondent's May 17, 1991, Response requests that the complaint be dismissed for lack of standing on the part of the Complainant. The Prehearing Memorandum and Order reiterates the Respondent's request for ruling on the issue of standing. The Respondent answered in the negative and failed to otherwise renew the motion when the Board inquired at hearing whether any motions were pending. Although we assume that the Motion to Dismiss has been withdrawn, we specifically find that the Teamsters have -2- standing to bring this action. The Complainant, Teamsters Union Local #340, is a public employee organization, within the meaning of 26 M.R.S.A. 968(5)(B) (1988). The Respondent, Rangeley Lakes School Region, is a public employer, within the meaning of 26 M.R.S.A. 962(7) (Supp. 1991), of Edward Smith, Sr., and other custodial employees engaged in lawful organizational activity within the meaning of 26 M.R.S.A. 963 (1988). POSITIONS OF THE PARTIES The Teamsters contend that Edward Smith, Sr., was a vocal union sup- porter whose organizational activity during January through March, 1991, was known throughout the Town of Rangeley (Town). According to the Teamsters, Smith's union activity was known by a school board member who was a part-time bartender, a town selectman, a member of the town budget committee who was a meat cutter at the IGA, most of the Region's employees and numerous Town employees. Tne Teamsters contend that Superintendent Kenneth Marks and Principal Robert Welch could only have avoided knowledge of Smith's organizational activity by "living in a monastery." The Teamsters contend that Smith's employment was terminated immediately after Smith and the Region's two other custodial employees met with Teamster Representative Terrence Hanlon seeking the Teamsters' representation as their collective bargaining agent, because "he blew the whistle on his immediate supervisor and because of his union activities." The Teamsters contend that the pretextual nature of the Region's asserted rationale for Smith's termination is substantiated by the following circumstances: Although failure to fill out his time sheets correctly along with failure to complete preventative maintenance logs were the two asserted reasons for Smith's termination, Smith was never shown the proper way to fill out his time sheets or told exactly when to leave to prepare for his afternoon bus run. The Region never followed up with Smith concerning his continuing failure to complete preventative maintenance logs or his continuing improper recordation of time worked. The Region apparently disregarded the ostensible thirty to forty occasions on which Principal Welch personally observed Smith departing earlier than he had -3- recorded on his time sheet because Smith's pay was never adjusted. The Region exhibited no concern for the accuracy of Smith's recorded departure times other than for the afternoon bus run, and, occasionally permitted, sometimes even at Wilcox's own suggestion,1 all of the custodians to depart early, without recording the actual times of their departure. The Region contends that it terminated Smith for failing to complete weekly preventative maintenance task logs as requested and for failing after three requests2 to correctly record his daily time worked. The Region admits, with the benefit of hindsight, that the Region's policies concerning dismissal could have been different, better, and better docu- mented, but argues that is not at issue in this case. The Region states that although the issue of sexual harassment may have been a motivating factor in custodians seeking assistance from the Union, that issue is a "red herring" in this case. According to the Region, even if the Superintendent had knowledge of allegations of sexual harassment through both the alleged offender and a member of the school board, such knowledge fails to constitute knowledge of participation in protected activity, a threshold proof requirement in dual motive discipline cases. At the close of Complainant's case, Respondent moved for dismissal contending that the Complainant had failed to establish Superintendent Kenneth Marks' knowledge of Smith's protected activity. The Board prelimi- narily dismissed the motion but reserved final decision for the final order. As is explained in more detail herein, because we have found knowl- edge by Marks, the motion is, hereby, DISMISSED. FINDINGS OF FACT Upon review of the entire record in this matter, and pursuant to 26 M.R.S.A. 968(5)(C) (1988), the Maine Labor Relations Board makes the ___________________________________ 1On one occasion the custodial employees were given six hours pay for time not worked. That occasion alone constitutes the equivalent of over one month of work days ending with fifteen minutes' worth of free pay. 2The Region characterizes these three occasions as warnings. Since there is nothing in any of the three alleged requests that may in any way be construed as a warning of any consequence or disciplinary action for failure to comply, we find as a fact that they were requests and not warnings. -4- following findings of fact: There are no other prohibited practice complaints pending against the Region or any Region employee. There is no pending representation case involving a proposed unit of the Region's custodial employees. The Region employs two custodians,3 a custodian/maintenance/bus driver and one head custodian. In January of 1991 the Region's rank and file custodial employees (two custodians and one custodian/maintenance/bus driver) spoke to represen- tatives of both the Town's organized employees and the Region's organized teachers about their formative desire to acquire a collective bargaining representative. In February, Custodian Zelda Clark, acting for the custo- dians, contacted Tom Haggan, a representative of the Town employees' bargaining unit, about speaking to an agent of their certified collective bargaining representative, Teamsters' business agent Terrence Hanlon, at an upcoming town employees' bargaining negotiations preparation meeting. The custodians were invited to attend by Town employee Jerry Bean. Due to the press of business at the Town employees' meeting, arrangements were made for Hanlon to return to speak to custodians at Clark's home on March 11, 1991. Smith and Region School Board member Ron Taylor were personal friends who spoke quite frequently. Smith told Taylor that a union repre- sentative was coming to Rangeley to discuss organization of the custodians. At their March 11th meeting with Hanlon, the custodians complained of treatment by their supervisor, Head Custodian Gaylon "Jeep" Wilcox. The belief that Wilcox was sexually harassing the female custodians and the perception that no one in the administration would do anything about it were the primary motivations for the organizational efforts of at least the two female custodians. Prior to the March 11th meeting, Clark had spoken to Region Principal Robert Welch about Wilcox slapping her "on the fanny," putting his arm about her and saying "very sexual things." Clark informed Welch that "if Jeep slaps me once more on the rear I'm going to draw off and pop him one." Welch responded, "Zelda, don't do that--if you've got a ___________________________________ 3Zelda Clark and Karalee Savage are the Region's other rank-and-file custodians. -5- problem come, you know, if he does it come and talk to me about it." Custodian Karalee Savage experienced similar unwanted pats and embraces from Wilcox. At the March 11th meeting, Hanlon suggested engaging a pri- vate attorney to redress the allegations of sexual harassment as an alter- native to organizing. The custodians opted, instead, to organize. Smith signed one Teamsters authorization card in February which was lost in the mail. He signed another, which was presented to Hanlon at the meeting at Clark's. There was one subsequent organizational meeting of the custodians at Smith's home in early April. During the period January through March 1991, Smith spoke of the organizational effort with IGA Manager and Town Budget Committee member Clayton Philbrick, with Town Selectman Ken Copeland, and with School Board Member Ron Taylor.4 During the same time frame, Clark discussed the organizational effort with Philbrick and Taylor also, as well as with "many of the people in and around town that had heard about [the custodians] going union." When Smith spoke to Taylor at his home on March 13th about the organi- zational effort Taylor asked why the employees were going union. Smith revealed to Taylor that allegations of sexual harassment of the two female custodians were a primary reason for their desire to organize. Smith also told Taylor about his personal problems with Wilcox and relayed his opinion that portions of periodic maintenance logs which he had been required to complete were unnecessary. Smith told Taylor that he had already spoken to Marks about custodian difficulties with Wilcox other than in the area of sexual harassment. Taylor told Smith that he would speak to Superintendent Marks about the allegations of sexual harassment. Taylor told Smith that if he had to, he would reveal where he had obtained the information. Smith informed Taylor, when asked, that the custodians had already spoken to Marks about unspecified treatment by Wilcox unrelated to the allegations of sexual harassment. Tnereafter, Taylor met with Clark at the Red Onion Restaurant where he worked, one morning prior to its opening. Taylor's purpose was to confirm or dispell Smith's allegations that she had been ___________________________________ 4The record does not establish the content of any discussions involving Philbrick and Copeland other than mention of the organizational effort. -6- sexually harassed.5 Clark was surprised to learn in that conversation that Taylor knew about the March 11th organizational meeting at her home and about what subjects were discussed there. Clark determined that Taylor had discussed those matters with Smith. Although Taylor testified that Clark denied being sexually harassed by Wilcox, Taylor informed Clark that he intended to speak with either the Superintendent or the School Board about the problems underlying the organizational effort. Although Taylor was upset when he learned of the allegations of sexual harassment, and explained to Marks that there was "no room in [his] life for any sort of such thing," Taylor testified that after speaking with Marks he looked no further into the sexual harassment complaints. Taylor's testimony is conflicting as to whether he informed Marks and Welch of the organizational movement prior to Smith's discharge.6 Taylor denies that the School Board discussed organizational activity at either its March 25 or April 9 meetings, and denies that he revealed his knowledge of the same to any school board member. Smith observed Taylor in Marks' office on the day of the March School Board meeting. Taylor spoke to Marks, in Welch's presence, about the issues of sexual harassment and about problems Smith had told Taylor he was having with Wilcox. Marks was already aware of the allegations of sexual harassment. Wilcox had informed Marks and Welch that "he had heard it downtown, and he had the names of people who supposedly were involved." Marks and Welch said they had talked to Wilcox, but that none of the women had "come for- ward and made a complaint about it." Marks told Taylor that Wilcox felt he was being ganged up on. Marks testified that he talked to two of the four people involved but not Clark and Savage "because before [he] got to them Ron Taylor came to [his] office." It is reasonable to assume that Clark and Savage would have been the most susceptible to sexual harassment by Wilcox because they were directly supervised by him. Marks further explained his failure to talk to Savage and Clark by testifying that "Zelda ___________________________________ 5Taylor testified that when asked, Clark denied that she was being sexually harassed by Wilcox. 6When questioned by Hanlon on direct, Taylor testified concerning this matter, as follows: -7- had gone home [and] . . . Karalee hadn't come in." As noted above, Clark had previously informed Welch of Wilcox's unwanted advances. In his testi- mony at hearing, Welch denied ever being informed of any issues involving sexual harassment prior to Taylor's comments. There is no evidence that Marks or Welch ever spoke to Clark or Savage after Marks' conversation with Taylor. There is no explanation of why such serious allegations were not taken up with the two female employees directly supervised by Wilcox. We find that the allegations of sexual harassment were so intertwined with the organizational effort that the former subject could not be broached without shattering the ostensible informational void concerning the latter. In ___________________________________ Q. So the only conversation you had was with Mr. Marks, school superintendent, after that? A. Yeah. Q. And did you tell him at that time what the problems were regarding the employees joining the union and whatnot? A. I don't ever remember saying anything about - - Q. Okay . . . . Transcript at p. 95. When questioned by Colby on cross-examination, Taylor testified concerning whether he had personal knowledge of whether Marks or Welch knew of union activity, as follows: A. Maybe after the fact. I remember, I believe Ken mentioned one time that the employees were looking into forming a union. Q. After what fact, after the termination? A. After the question of termination had risen. Q. So prior to the termination then there wasn't any discussion with Mr. Marks about the union activity as far as you know. A. No. Transcript at p. 97. When questioned by Hanlon on redirect, Taylor testified as follows: Q. Okay. But you did take the information to Mr. Marks before Ed was terminated. A. Of the? Q. Of the charges that Ed had talked about, the sexual harassment and unionism and whatnot. A. Yes. Transcript at p. 100. The first two lines of questioning above establish that Taylor did not discuss problems relating to custodian organization and thus he knew of no discussions with Marks concerning union activity. Those facts do not undermine our finding of Taylor's notification to Marks that custodian organizational activity was underway. We find that notification is clearly established by the last question and answer. -8- late March, Savage noticed a typewritten memo on the conference table in Marks' office on the subject of sexual harassment. The names mentioned in the memo were Clark, Savage, Jean Rubly and Pilar Bates. There is no evidence that the Region was officially notified of the organizational effort by authorization card majority or other showing of interest by the custodians or their agent. The Board's records contain no petition for representation filed by the Teamsters for a prospective custo- dian unit and there is no evidence of a request for voluntary recognition. We find it more probable than not that the Superintendent knew generally of the organizational effort in late January and that he knew specifically of Smith's active participation prior to deciding to discharge Smith. Edward Smith, Sr., began his employment as a custodian with the Region in November of 1989. Smith was encouraged by the Region to become additionally qualified to work as a bus driver and in September of 1990, Smith assumed a combined position as the Region's only custodial/ maintenance/bus driver employee. Smith was given one unspecified job description at mid-January and another at the end of January. Smith was asked to read them both and after reading them he indicated that he understood them. While in the Region's employ, Smith reported to Head Custodian Gaylon "Jeep" Wilcox, in his custodian/maintenance worker capa- city, and to Principal Robert Welch in his bus driver capacity. Smith and Wilcox appear to have directly communicated on a less-than-daily basis about Smith's daily duties or performance. Wilcox often assigned tasks to Smith by note. Smith made bus runs before, during and after the school day, transporting students to and from school. Between these runs Smith worked as a custodian and performed maintenance duties such as repairing lockers, changing light bulbs, changing filters for heating units, repairing pencil sharpeners and other tasks requested directly by teachers. Smith picked up his bus at the Town Garage at 7:00 a.m. and his first student at 7:15 a.m. By 7:45 a.m. all Smith's riders were at school. Smith's bus was then parked in the corner of the parking lot and he began to perform maintenance/custodial duties. Smith customarily departed to ready his bus at 10:15 a.m. and customarily signed out at 10:30 a.m. -9- Smith was never faulted for this time-keeping practice. Between 10:30 and 11:30 a.m. he transported kindergarten students to their homes. On his return he assumed his custodial/maintenance duties. At about 2:15 p.m. Smith thoroughly checked the roadworthiness of his bus, including inspec- tion of seats to assure they were bolted down and not ripped; inspection of the headlights, windshield wipers, 4-way blinkers, front axle, tires, side- lights, windows, the emergency bell on the back door, support spring leaves and, intermittently, the U-joints. Tne bus driver job description indicates that these inspections as well as cleaning and post-run inspection at the end of the day are bus driver duties. Depending on the weather, Smith also warmed up the bus for varying lengths of time. At 2:25 p.m. the kindergar- ten through high school students boarded and Smith returned them to their homes. Smith occasionally drove the bus on special trips at night. Smith is paid by the hour for custodial duties and by the trip for bus driving. Smith's hourly rate as a custodian was $6.25 and he was paid $35.28 per day as a bus driver. Smith understood that his custodial/maintenance work time and therefore his record of time worked should have stopped when he left the school building and walked the three hundred feet to commence his bus driver duties. All of the Region's custodial employees are required to indicate their actual work hours in writing on a clip board kept in the Region's admin- istrative office. In practice, employees use a rough justice or "honor" system by which their hours are generally "even[ed] out in the end" without bothering about the recordation of small amounts of time which are "a little over or under." Custodial employees each receive four free hours of pay for four hours not worked immediately preceding their official vacation departure time. Additionally, custodial employees occasionally go home early at Wilcox's suggestion, indicating later, erroneous departure times reflecting a full day's work. These early departures are more frequent during the summer, especially on Fridays. On one occasion, at Wilcox's suggestion, custodial employees overinflated their time sheets by as much as six hours.7 Wilcox lacked actual authority to permit his supervised employees to be paid for time not worked, although he possessed the actual ___________________________________ 7See footnote 1, above. -10- authority to permit them to leave early from work in a non-pay status. No period of time was ever specified for Smith's readying of the bus for its respective runs; only show-up times--such as that of 2:25 p.m.-- were established. Smith was never given exact beginning or ending times for his custodial or bus driving duties. Smith, without significant excep- tion, always erroneously recorded his departure time as 2:30 p.m. for the 2:30 p.m. run. Smith has only twice been called back in from the bus to perform maintenance work. Superintendent Marks informed Smith in January that he was not to leave fifteen minutes early to ready the bus and that he was to keep his bus time separated from his custodial time. After being so instructed, Smith discussed the matter with his immediate supervisor, Wilcox. They mutually agreed upon 10 minutes as the maximum lead time for Smith's departure to ready the bus. The Region knew of Smith's consistent early departures and condoned them until the commencement of organizational activity in January of 1991. Log sheets for the purpose of recording the performance of preven- tative maintenance on various components of the Region's physical plant were promulgated by Wilcox in the fall of 1990, at the suggestion of Region Superintendent Kenneth Marks. The only Region employees who perform preventative maintenance and are required to complete these log sheets are Wilcox and Smith. Wilcox is required to submit his logs to the Superinten- dent who reviews them monthly. Wilcox's logs record preventative main- tenance on boilers, univents and heating units. There is no record evidence indicating whether Wilcox completed his preventative maintenance logs. Welch was informed by Wilcox that he had given Smith the logs in the fall of 1990, and that Wilcox had told Smith to turn them in weekly. Smith testified that the first time he ever saw the logs was in February when Welch gave them to him. We credit Smith's direct testimony over the hearsay evidence by Welch that Wilcox had given the logs to Smith in the fall.8 ___________________________________ 8Although Wilcox was listed on the Region's witness list and appeared for the unsuccessful first date of hearing, he did not testify at the hearing. The Region apparently gave no notice that Wilcox would not be called to testify; however, the Teamsters made no objection based on the Region's failure to notify and made no attempt to call Wilcox at hearing. -11- In February, Welch personally gave Smith a copy of the logs and told Smith that he "must" do them. This encounter with Welch occurred on the day after Welch had admonished Smith for talking about school-related mat- ters publicly.9 In that meeting Smith told Welch that Wilcox didn't give him any work to do. Welch responded, "Well, you're old enough to find your own." The nextmorning Welch said he would speak to Wilcox about giving Smith somethingto do. Principal Welch expected that the logs would be turned in weekly by Smith to Wilcox. Superintendent Marks thinks Smith was to turn his logs in to Principal Welch. Smith turned in log sheets to no one but understood that he was to record, on a daily basis, what he had done that day. Smith told Welch that he disputed the necessity of filling out the logs but also told Welch that he would do them. No one indicated to Smith a time frame for completion of the forms and neither Welch, Wilcox nor Marks spoke of the forms to Smith, until the day of Smith's termination. Within a couple of days after Welch's discussion of the logs with Smith, Wilcox informed Smith that he was no longer going to tell Smith what to do. Wilcox told Smith that he would have to find his own work. The Region asserts that it discovered that Smith's log sheets hadn't been turned in when, during budget preparation on an unspecified date, it was "looking at the time and hours that went into [his] job." Welch asserts that he asked Wilcox about the log sheets at that time and Wilcox responded that Smith hadn't turned them in. Marks is unsure of the date on which he was first informed by Welch that the logs were not being completed and is unsure of the date when Wilcox first said anything about Smith's time sheets. Tnere is no allegation or evidence that Smith actually failed to perform the maintenance tasks listed on the preventative maintenance logs. There is no record of deficiency in the performance of job duties by Smith. Marks informed his Administrative Assistant, Sheila Raymond, to remind Smith, in writing, about keeping his times recorded separately, on the first occasion after Marks' January conversation with Smith, that there was an overlap in Smith's time. Thereafter, Smith received an undated note ___________________________________ 9The custodians met with Wilcox and Welch in February and discussed the chain-of-command and evaluation procedures. See also footnote 15, below. -12- from Administrative Assistant Sheila Raymond which stated: Whenever you drive the school bus - I need the times seperated [sic] for budgeting purposes. Only put time for custodial work on the time cards. If you do a regular run, field trip, sports event or whatever - with the bus - check out when you go to get the bus and check back in when you return. Record all bus trips (except regular town runs) on your weekly bill. Smith interpreted the note from Raymond to mean "that if [he] left early [he] was to put early." Superintendent Marks works three days per week at Rangeley. Because Marks is not at the school "all the time . . . [he's] not privy to a lot of things that happen in Rangeley proper or at the School." Marks asked Raymond to keep an eye on the accuracy of Smith's time sheets. Raymond could observe Smith's bus from her work station.10 Marks asked Welch to speak to Smith about recording his time properly.11 Marks and Welch observed Smith leaving earlier than reflected on his time sheets about a half dozen times during the period between Marks' request of Welch and Welch's discussion with Smith just before February vacation. Although Marks testified that some of these occasions were recorded on Smith's time cards, we find no such notations.12 Welch testified that he observed Smith leaving fifteen minutes before the recorded time of his departure on thirty to ___________________________________ 1ORaymond did not testify and the evidence does not establish that she compiled a record of any time sheet falsification by Smith. 11See footnote 2, above. 12The time sheets offered by the Region in support of its action are of practically no probative value. Marks' only notation was apparently made for purposes of litigation, when Marks forwarded copies of the time cards to the Region's attorney. Welch's only notation was made with respect to a bus run time frame other than the one at issue and was not made contempo- raneously. Although certain annotations on one of Respondent's photocopied time-sheet exhibits were reputed to have been made by Wilcox, who did not testify, the testimony established that those annotations were not on the original. To the extent that they are readable, apparently the only evi- dence of value respecting any of the time sheets is that until informed that he was to be terminated, Smith kept records of his maintenance/ custodial time worked, during his entire tenure with the Region, in incre- ments of no less than one-half hour. -13- forty occasions.13 Marks and Welch got input from Wilcox and Raymond and conferred in March about the decision to terminate Smith. Marks made the decision him- self. The School Board was told that Smith had falsified his time sheets, and that Smith had received a note and had been spoken to by both Welch and Marks about his time-sheet falsifications. The School Board supported Marks' decision after he said he had documentation. The documentation which Marks told the School Board he possessed consisted of letters from Town taxpayers14 concerning comments made publicly by Smith about internal school matters and apparently had nothing to do with documented time-card falsifications or documented refusals to obey work rules after notice and an opportunity to comply. Taylor testified that he said nothing to the School Board or any member thereof about the organizational effort or the complaints of sexual harassment, even when Marks informed the Board that he was terminating Smith. Taylor told Marks in front of Welch that he better have his "ducks in a row" when firing Smith. Marks testified that he did not ask Taylor why. We find this improbable. When Marks told Taylor why Smith was being terminated, he mentioned a few unspecified reasons in addition to Smith's time and maintenance logs. Because of their personal friendship, Taylor gave Smith a week or two of advance notice that he was probably going to be terminated. Smith told Taylor he thought portions of the maintenance logs were unnecessary. On April 10, Principal Welch called Smith from his cafeteria cleaning duties to the Superintendent's office. Once there, the Superintendent informed Smith that he was being terminated for: comments such as that if he (Smith) got Wilcox mad at him in the morning, he didn't have to do ___________________________________ 13It is not credible that Welch would have witnessed thirty or forty timesheet falsifications without having made some record of the dates and times involved, and without having made any attempt to recoup any of the wages allegedly improperly paid to Smith for those periods of time. Furthermore, the record does not show that Welch even told Marks of the thirty or forty occasions. 14See footnote 15, below. -14- anything the rest of the day15; falsifying his time-sheets by signing out later than his actual departure and for failing to complete preventative maintenance log sheets, as requested. Marks indicated a preference that Smith resign in lieu of termination and Smith was given until the next day to decide. On inquiry by Smith, Marks indicated that Smith was "one of the best maintenance men [the Region had] ever had and . . . a darned good carpenter." Smith was told he would be paid through April 24th. Smith expressed confusion concerning being relieved of his bus driver duties, indicating that he thought he was performing the duties of two separate jobs. Welch replied that the two types of duties were included in one com- bined Custodian/Bus Driver position. The next day Smith declined to resign and requested written reasons for his termination. Smith's April 12, 1991, inquiry to Welch states, in pertinent part: On April 11, 1991 at 8:15 AM I ask you to give me in writing why you and Mr. Marks terminated my job. I all so ask to put the reason for custodian/maintenance on one sheet of paper, and the reason for termintion of the bus driveing job on another sheet of paper I am sending this to confrim our conversation at that time Smith subsequently received, by registered mail, a letter from Marks which states, in pertinent part: In response to your letter which I received on April 16, 1991, I will state the two major reasons for your termination. 1) presenting inaccurate time cards and __________________________________ 15Smith testified that Taylor told him that he was left with the impression at the March 25th or 26th School Board executive session that Marks possessed handwritten letters from town taxpayers that Smith had made comments about Wilcox. On February 24, 1991, Welch asked Smith in Budget Committee member Jean Stewart's presence whether he had made comments about Wilcox to her. Smith admitted that he had in response to her question of how Wilcox was doing, replied "the same, no difference." Welch then admon- ished Smith not to talk about school matters publicly. Smith agreed to comply. Smith's January 8, 1991, custodian job description states that one qualification for the job is the ability to "keep what happens on the job at the job and not carry rumors or information into the community." The Region has attributed no portion of its termination decision to such com- ments by Smith. -15- 2) not completing records as requested by the principal These are the points we talked to you about on April 10, 1991 in my office. The second part of you request was for a separate set of reasons for transportation. I can not do this, since the position was established as maintenance/transportation from the very beginning. Hanlon called the Region and spoke to Welch on April 12, 1991. Welch informed Hanlon that he should speak to Marks. Hanlon spoke with Marks the next day objecting to Smith's termination. Hanlon accused Marks of having committed an unfair labor practice by terminating Smith. Marks testified that Hanlon's appraisal of the custodians' organizational activity in this phone conversation was his first indication that the custodians were seeking representation by any union. Smith's last payroll date was May 3, 1991, on which date he was paid $486.27 for "Extra Trips." After Smith's termination, Harold Schaetzle, the owner of a local gas station/convenience store, commented to Savage that he had heard that she was "next on the list." Rangeley is a small community in which "when some- body finds out something . . . it's all over the place." Most of the Region's employees knew of the custodians' organizational effort. Smith had never previously been formally disciplined during his 18-month tenure at the Region. He had been admonished not to speak about school matters publicly and had been told not to sit on the stage while students were in the cafeteria. There is no formal disciplinary procedure at the Region.16 There has been no disciplinary action taken against a custodian at the Region in the last ten years, although there is evidence of one unspecified discharge within the last five years at the Region. There is no expectation of progressive disciplinary measures at the Region. Neither Marks, Welch, nor the School Board thought of disciplining Smith ___________________________________ 16Although the custodian/maintenance job description says that "perfor- mance of this job will be evaluated in accordance with the Board's Policy on Evaluation of Support Personnel," no such policy was submitted. Neither is there any allegation or evidence that Smith's job performance was not in accord with the standards contained in that policy. -16- with anything but discharge. Smith's work performance was highly thought of by the Region and its employees. There is no allegation or evidence that any other employee knew that Smith was obliged to complete the logs, or knew that he was failing to fill them out as required. There is no allegation or evidence that any other employee other than Raymond knew of Marks' and Welch's disapproval of Smith's time-keeping practices. DISCUSSION As is more fully explained below, we find that the Teamsters have correctly alleged and proven violations of 26 M.R.S.A. 964(1)(A) and (B) (1988). We shall, therefore, order Smith's reinstatement with back pay, benefits and interest. We also find that the evidence fails to support the Teamsters' allegation of violations of 26 M.R.S.A. 964 (1)(C) and (D) (1988). Those portions of the complaint shall therefore be dismissed. We now turn to a discussion of the standards to be applied and the rationale which supports our findings of prohibited practice in the facts of this case. The Teamsters complain that by discharging Smith for his open support of the organization of the Region's custodial workers, the Region has violated 26 M.R.S.A. 964(1)(A) through (D) (1988). The Region contends that it rightly terminated Smith for failure to complete preventative main- tenance logs and for falsifying his time sheets. Accordingly, this is a dual motive case. In Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 10-11, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986), we stated, with regard to the standard to be applied in dual motive disciplinary cases, that: Since its initial adoption in Holmes v. Town of Old Orchard, MLRB No. 82-14 (Sept. 27, 1982); aff'd sub nom. Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Ass'n., York Super. Ct., Docket No. CV-82-613 (Oct. 27, 1983), we have consistently applied the National Labor Relations Board's (NLRB) "Wright Line" test in the "dual motive" disciplinary context. Ritchie v. Town of Hampden, MLRB No. 83-15 (July 18, 1983), aff'd sub nom. Town of Hampden v. Maine Labor Relations Board, Penobscot Super. Ct., Docket No. CV-82-407 (Sept. 14, 1984). Our use of the "Wright Line" [standard] in "dual motive" cases arising under the parallel section of the State Employees Labor Relations Act, 26 M.R.S.A. 979-C(1)(B), has been approved by the Supreme -17- Judicial Court. Maine State Employees Ass'n. v. State Development Office, 499 A.2d 165, 168-169 (Me. 1985). Subsequent to the Board's adoption thereof, the Supreme Court of the United States affirmed the NLRB's use of the "Wright Line" test. Mr. Justice White, writing for a unanimous Court, . . . outlined the "Wright Line" test as follows: The Board held that the [Complainant], of course, had the burden of proving that the employee's conduct pro- tected by [Section 963] was a substantial or a moti- vating 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 [964(1)(A) and (1)(B)] 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. NLRB v. Transportation Management Corp., 462 U.S. 393, 400, 103 S.Ct. 2469, 2473, 76 L.Ed. 2d 667 (1983) (footnotes omitted) [sections of Maine Municipal Law substituted for parallel sec- tions of National Labor Relations Act], cited and adopted by the Board, Ross v. Portland School Committee, MLRB No. 83-04, at 19 (Aug. 29, 1983). In accordance with the first tine of the Wright Line test, the Teamsters must initially prove by a preponderance: Smith's participation in pro- tected activity; knowledge of that participation by the Region; and causal nexus, or that Smith's protected activity was a motivating factor in his discharge. We find the first tine of Wright Line has been met. Knowledge of Smith's Protected Activity The evidence amply establishes Smith's participation and the Region's knowledge of Smith's participation in protected organizational activity. The evidence demonstrates that Smith, self-appointed or not, was a ubi- quitous spokesperson for custodians in their organizational and other acti- vity aimed at mutual aid and protection.17 The evidence establishes that ___________________________________ 17Smith's having talked to Marks about custodians' concerns was suf- ficient to identify him as their unofficial spokesperson. -18- Smith spoke directly to Marks about issues, other than sexual harassment, that pertained to the custodians' perceived mistreatment at the hands of Wilcox. Smith informed Taylor in advance that a union official had been scheduled to visit and confer with the custodians for organizational pur- poses. Smith talked to Taylor in March about his personal problems with Wilcox, the lack of necessity of portions of the maintenance logs and sexual harassment by Wilcox. Taylor reiterated Smith's concerns in a con- versation he had with Marks, in Welch's presence, in which he relayed his concern about allegations of sexual harassment by Wilcox. Although Taylor states that as far as he knows there was no discussion of the custodians' union activity, Taylor testified that he "did take information to Mr. Marks before Ed was terminated . . . [o]f the charges that Ed had talked about, the sexual harassment and unionism and whatnot." We have found that allegations of sexual harassment by Wilcox were a primary motivational theme in the attempted organization of the Region's custodians. We also find that it is more likely than not that the messages of sexual harassment and organizational activity were relayed together. Rumors of organizational activity by the Region's custodians were pervasive at the Region and had diffused to the Town. It does not matter that the chief means of the spread of the rumors of organizational activity afoot may have been Smith himself. There is evidence that the allegations of sexual harassment of custodians by Wilcox and the initiation of organiza- tional activity by the custodians were intertwined and causally related. There is also evidence that the organizational activity was a result of not only the alleged sexual harassment but also of the feeling by the custo- dians that they were unable to "get anybody . . . to do anything in school about it." Finally, there is evidence that the related messages of harassment and organizational activity were relayed together outside of the Region, within the Town. We find that the Region knew of the custodians' organizational activity and of Smith's involvement therein. We base this finding upon widespread knowledge of both in the Region and in the Town, upon Smith's direct com- munication with Marks, upon knowledge by a School Board member and his com- munication of same to the Superintendent, and upon a reasonable inference -19- that knowledge by one School Board member and the Superintendent may be imputed to the Region's School Board proper. Having found that Marks knew of Smith's protected activity, the inquiry now becomes whether Smith's pro- tected activity motivated Marks to terminate him. We conclude that it did. Discriminatory Motivation Timing alone is generally an insufficient basis to support a finding of discriminatory motivation. However, the timing of Smith's discharge coincident with widespread organizational rumors and the taking of first substantial steps toward representation contributes to an inference of discrimination when viewed in the totality of the circumstances in the facts of this case. The record establishes no history of enforcement of accurate time-keeping practices at the Region. There is no evidence that any of the time records of any of the Region's other hourly paid employees were ever inspected for accuracy. On the contrary, the record establishes that Smith's first line supervisor condoned, and encouraged in certain situations, albeit apparently without official authority, the falsification of custodians' time sheets. The time card irregularities for which Smith was in large measure purportedly discharged were practiced by Smith apparently since the inception of his bus driver/maintenance/custodial capacity. As well as can be determined, Smith appears to have first begun keeping his time in quarter hour increments, indicating a more accurate accounting of his actual departure, during the payroll week ending March 28 or 29, 1991, upon notification that he was to be terminated, in part, for his time- keeping practices. Marks' concern with Smith's time card accuracy arose concurrent with custodial organizational activity. Smith was believed to have left early on thirty to forty occasions by Welch's account. Yet, the record fails to indicate any mention to Smith at all by Wilcox, his direct supervisor, and comment by Welch himself only in February after Welch was requested to speak to Smith by Marks. We think the apparent lack of impor- tance attributed to his time-keeping practices by Wilcox and Welch, his first and second level supervisors, indicates that the practice was con- sidered insignificant prior to organizational activity. It is difficult to ascertain exactly when Smith was first given the preventative maintenance logs. According to Smith, they were first given -20- to him in February at the meeting he had with Welch during which he was questioned about talking publicly of internal school matters and was told to keep his time accurately recorded. Welch and Marks, on the other hand, state that Wilcox, who did not testify,18 informed them that he had given the logs to Smith in the fall and that Welch was notified by Wilcox during undated budget preparations that the forms had not been turned in to him by Smith, as anticipated. Whether Smith had the forms during the preceding fall and was first unequivocally required to complete them in February, or whether he actually received them for the first time in February, the completion of the logs only became an issue after the organizational effort was widely known to be underway. It is of little significance whether the logs were an old requirement strictly enforced only after the commencement of organizational activity or whether the logs were a new requirement ini- tiated after the commencement of organizational activity. In either case, they achieved emphasis as a requirement, eventually mandatory on penalty of discharge, only after the custodians' organizational effort was known by the Region to be underway. Smith appears to have attempted to end-run Welch on the necessity of the maintenance logs and on other supervisory issues respecting Wilcox, with Marks, the public and the School Board. In February, Smith directly disputed the necessity of portions of the logs, when they were given to him and he was instructed to complete them. Smith also was involved in direct discussions with management about Wilcox and his supervision of custodians. Finally, Smith appeared to be engaged in something akin to negotiation with Wilcox respecting the permissible lead time for his driving duties in light of Marks' requirement both that he refrain from leaving fifteen minutes early and that he record the actual time of his departure. There is no argument or evidence to what extent such behavior on the part of the Region's unorganized employees constituted permissible individual nego- tiation of working conditions, or terms of employment. The Region does not contend that any of this conduct contributed in any way to Marks' decision to terminate Smith. ___________________________________ 18See footnote 8, above. -21- Smith was never warned that failure of compliance respecting the time sheets or maintenance logs, either separately or together, would result in any disciplinary action against him. We conclude that neglect of such notice constitutes convincing circumstantial evidence of pretext, espe- cially where, as here, the employee meted the ultimate in disciplinary measures was previously a seemingly valued, competent employee with no previously articulated unsatisfactory work history. Applying the Wright Line standard to the facts of this case, we conclude that the Region has violated 26 M.R.S.A. 964(1)(B) (1988). In so concluding, we find that Edward Smith, Sr., was engaged in protected union organizational activity, and that Region Superintendent Kenneth Marks knew of Smith's activity. We also find that Smith's organizational activity was a motivating factor in Marks' decision to terminate Smith. Finally, we find based on the record as a whole that the Region has failed to prove by a preponderance of the evidence both that its discharge of Smith rested on his unprotected conduct and that Smith would have lost his job in any event due to such unprotected activity. Interference, restraint and coercion The Teamsters allege that by discharging Smith the Region has interfered with, restrained, or coerced employees in the exercise of pro- tected rights in violation of 26 M.R.S.A. 964(1)(A) (1988). The test employed by the Board, with the Law Court's approval, in its consideration of allegations of such prohibited practices is 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 [Municipal Law]. Hendsbee v. Department of Public Safe y. No. 89-11, slip op. at 25, 12 NPER ME-21005 (Me.L.R.B. Jan. 16, 1990) quoting, Kittery Employees Association v. Strahl, No. 86-16, slip op. at 7, 9 NPER ME-18002 (Me.L.R.B. Aug. 6. 1986). There are few things more potentially chilling of organizational rights than the discriminatory discharge of an organizational movement's proponents. We conclude that the Region's discriminatory discharge of Smith inherently interferes with the free exercise of employee rights under the Municipal Law. We therefore find the Region's discharge of Smith to be -22- a violation of 26 M.R.S.A. 964(1)(A) (1988). Interferinq with the formation of an employee organization and Discrimination for accessing the Board or its procedures The Teamsters' complaint alleges that the Region's actions violated 26 M.R.S.A. 964(1)(C) (1988). We have repeatedly noted in analyzing changes based on the language contained in that and identical provisions of Maine's other public sector acts that Section 964(1)(C) "is directed at the evil of too much financial or other support of, encouraging the formation of, or actually participating in, the affairs of the union and thereby potentially dominating it." Hendsbee v. Department of Public Safety, No. 89-11, slip op. at 26, 12 NPER ME-21005 (Me.L.R.B. Jan. 16, 1990); Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 13, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986); Teamsters Local Union No. 48 v. Town of Kittery, No. 84-25, slip op. at 4, 7 NPER 20-15018 (Me.L.R.B. July 13, 1984). The Region neither participated in nor other- wise supported the activities of the Teamsters; therefore, we hold that the Region did not violate this section of the Municipal Law. The Teamsters' complaint also alleges that the Region's actions violated 26 M.R.S.A. 964(1)(D) (1988). That portion of the Municipal Law prohibits discrimination (including discriminatory discharge) "against any employee because he has signed or filed any affidavit, petition or complaint or given any information or testimony under [the Municipal Law]." The object of such prohibition is to protect "the rights of employees or employee organizations to file complaints or petitions with or to give testimony before this Board by protecting employees involved in any stage of a Labor Relations Board proceeding from a wide variety of discriminatory actions by the employer." Teamsters Local Union No. 48 v. Town of Fort Fairfield, No. 86-01, slip op. at 14, 9 NPER ME-17008 (Me.L.R.B. Jan. 24, 1986). No evidence was adduced to establish that any of the Region's employees ever appeared in a Board proceeding or filed a petition or complaint with the Board. Accordingly, those portions of the Teamsters' complaint which allege violations of 26 M.R.S.A. 964(1)(C) and (D) (1988) must be dismissed. -23- Remedies for violative actions by the Region The Municipal Law provides that on finding that prohibited practices have occurred the Board "shall issue an order requiring the [offender] to cease and desist from such prohibited practices and to take such affir- mative action, including reinstatement of employees with or without back pay, as will effectuate the policies of this chapter." 26 M.R.S.A. 968(5)(C) (1988). Because we have found that the Region violated 26 M.R.S.A. 964(1)(A) and (B) (1988) by terminating Smith's employment, we shall order the Region to cease and desist from interfering with the Section 963 organizational rights of its custodial employees and to cease and desist from discriminating against employees on the basis of organiza- tional activity. In addition to these prospective remedial actions, in order to provide "a restoration of the situation, as nearly as possibly to that which would have obtained 'but for the commission of the prohibited practice,'" MSEA v. School Committee of the City of Lewiston, No. 90-12 slip op. at 23, 12 NPER ME-21009 (Me.L.R.B. Aug. 21, 1990), we shall order the Region to immediately and unconditionally offer Smith reemployment with the Region in the same position which he occupied prior to his unlawful termination on April 10, 1991. Smith may accept or refuse within ten calendar days of actual receipt of the Region's written offer by certified United States mail. We shall also, as part of our make-whole remedy, order that Smith be given all benefits, back pay and interest from the date of the cessation of his employment to the date of his acceptance or refusal of the Region's offer of reemployment, less any benefits, back pay and interest attributable to the eighty-one days between the July 18, 1991 original hearing date and the actual date of the evidentiary hearing, October 7, 1991. In Holmes v. Town of Old Orchard Beach, No. 82-14, slip op. at 14-15, 5 NPER 20-13029 (Me.L.R.B. Sept. 27, 1982), aff'd sub nom., Town of Old Orchard Beach v. Old Orchard Beach Police Patrolmen's Association, Nos. CV-82-613 & CV-83-481 (Me. Super. Ct., York Cty., Oct. 27, 1983), we set forth the formula to be applied in determining both back pay and interest, as follows: The [Respondent] will be ordered to pay [Complainant] the pay which [Complainant] would have received, but for the -24- [Respondent's] prohibited conduct, less any earnings which [Complainant] may have earned from other sources of employment during the lay-off period. We will also order the [Respondent] to pay to [Complainant] interest on the amount of back pay to which [Complainant] is entitled. The formula to be applied in determining the amount of back pay due to [Complainant] shall be as follows: "Loss of pay is to be determined by deducting from a sum equal to that which [Complainant] should have earned for each such quarter or portion thereof, the net earnings, if any, from other employment during that period. Net earnings means earnings less expenses, such as for transportation and room and board, incurred by the [Complainant] in connection with obtaining other work and working elsewhere than for the [Respondent] during the quarters in question." Council 74, AFSCME v. City of Bangor, MLRB Case No. 80-41, at page 11 (9/24/80), aff'd, City of Bangor v. AFSCME, Council 74 and M.L.R.B., [449 A.2d 1129 (Me. 1982)]. The interest due on the back pay award, if any, as determined by application of the above formula, shall be calculated as follows: "Interest on the back pay is to be computed as prescribed in Florida Steel Corp., 231 NLRB 651 (1977); see also NLRB v. George E. Light Board Storage, Inc., 373 F.2d 762, 766 (5th Cir. 1967). Thus, interest is to accrue commencing with the last day of each calendar quarter of the back pay period on the total amount then due and owing at the adjusted prime interest rate then in effect, and continuing at such rate, as modified from time to time by the Secretary of the Treasury, until the [Respondent] has complied with this order." Council 74, AFSCME V. City of Bangor, [Supra.] The adjusted prime interest rates as determined by the United States Secretary of the Treasury and applicable to the period of time material to the instant case are: Apr. 1, 1991 - Dec. 30, 1991 - 10%; Jan. 1, 1992 - Mar. 31, 1992 - 9%. The Region shall restore to Smith all benefits to which he would have been entitled during the period above, for which we have authorized back- pay. These benefits are to include, but are not limited to, the accumula- tion of vacation and sick leave, holiday pay, medical insurance and seniority. -25- The Board hereby retains jurisdiction over this matter to assure compliance with this order and to entertain written argument, tendered within ten calendar days of the issuance hereof, concerning whether bene- fits, back pay and interest respecting the excepted eighty-one day period are also properly assessed against the Region. Smith's status after reemployment by the Region Although it is not our place, independently, to determine whether the Region's disciplinary measures are appropriate in the abstract, suitably arrived at, or applied, we are required to determine whether alleged discriminatory measures are either so inappropriate to the related offense or, though appropriate, are so inappropriately arrived at that an inference of pretext for unlawful discrimination may reasonably be drawn. We believe that the Region would not have terminated Smith if he had not been involved in protected union organizational activity. This does not mean that we think that Smith's actions in failing to complete the logs and in falsifying his time sheets were not justifiably sufficient grounds for ter- mination separately or taken together. Smith's conduct in that regard was reprehensible. The Region is completely justified in expecting truthful time-keeping and may certainly require compliance with and documentation of reasonable preventative maintenance logs. Accordingly, although we have required the Region to restore Smith to the position in which he would have continued, but for the Region's dis- criminatory discharge, it is unlikely that we would protect him, henceforth, from any discipline, up to and including discharge, for any like infractions in the future. Additional warning by the Region at this point is unnecessary. Attorney's Fees and Costs The Board customarily exercises its make-whole remedial power to award costs and attorney's fees in cases involving blatant violations, or frivo- lous charges or defenses. Although we would not hesitate to make such an award in a case involving no colorable defense to the charge of discrimina- tory discharge, we decline to make an award in this case. As outlined above we have found that Smith's protected activity was a motivating factor in Marks' decision to discharge him. On other other hand our finding of -26- violation rests also on the failure of the Region to show that it would have discharged Smith in any event and for valid reasons. There may have been, as is vaguely suggested, additional, possibly valid considerations which also entered into Marks' ultimate decision to terminate Smith. However, no additional and contributing valid considerations were advanced. The Region has failed to avoid findings of violation of the Municipal Law because its proof that it would have discharged Smith as a result of the two Town-asserted19 bases for Marks' decision leaves us at equipoise. Proof by a proponderence is required by the second tine of Wright Line. We simply are not convinced in the facts of this case that the Region would have discharged Smith for failure to complete the logs and for falsifica- tion of his time sheets alone. In light of this we find an award of costs and attorney's fees to be unwarranted. 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 (3)(1988), it is hereby ORDERED: 1. That the Rangeley Lakes School Region cease and desist from interfering with, restraining or coercing employees in the exercise of their right to join, form and participate in the activities of organizations of their own choosing or to be represented by said organizations in collective bargaining for terms and conditions of employment. 2. That the Rangeley Lakes School Region cease and desist from discouraging membership in any employee organization by discriminating in regard to hire or tenure of employment or any term or condition of employment. 3. That the Rangeley Lakes School Region immediately and uncon- ditionally offer Edward Smith, Sr., reemployment with the Region as a custodian/maintenance/bus driver. Smith may accept or refuse the Region's offer within ten calendar days of the receipt of the offer by certified United States mail. ___________________________________ 19The evidence does prove by a preponderance that Smith failed to correctly record his time, and that he did not complete the logs after Welch's instructions to do so. -27- 4. That the Rangeley Lakes School Region pay Edward Smith, Sr., back pay and interest from the date of the cessation of his employment to the date of his acceptance or rejection of the Region's offer, required in paragraph 3 above, less any back pay and interest attributable to the 81 days between July 18, 1991, and October 7, 1991. 5. That the Region restore to Smith all benefits to which he would have been entitled during the period between his ter- mination and the date of his acceptance or rejection of the Region's offer, required in paragraph 3 above, less those attributable to the 81-day period. 6. That the Teamsters' allegations of domination or interference with Teamsters in violation of 26 M.R.S.A. 964(1)(C) (1988), and discrimination in violation of 26 M.R.S.A. 964(1)(D) (1988), be dismissed. 7. That thirty days after the date of this decision and order, if the parties have not agreed on the amount of back pay, interest and/or benefits due to Smith, the Teamsters may file with the Executive Director and serve on the Region: 1. a weekly list of gross back pay claimed, 2. a weekly list of actual earnings for any and all employment during the back pay period, 3. a list of expenses incurred in seeking and holding interim employment, 4. a list of any benefits claimed, 5. interest claimed, and 6. documents and/or affidavits supporting each item. The Region will have fifteen days from such filing to respond with documents and/or affidavits bearing on each disputed item. The Board will thereafter issue a supplemental order for back pay, interest, and benefits due, or conduct such further proceedings as are necessary to supplement this Order. 8. That the Rangeley Lakes School Region post for sixty (60) days in conspicuous places where notice to its custodial, maintenance and bus driving employees are customarily posted, and at times when such employees customarily perform work at those places, copies of the attached notice to employees which states that the Region will cease and desist from the actions set forth in paragraphs one and two and will take the affirmative action set forth in paragraphs three through five. Copies of the notice shall be signed by the Region's authorized representative prior to posting and shall be -28- posted by the Region immediately upon receipt.20 The Region shall take reasonable steps to ensure that the notices are not altered, defaced, or covered by other materials. 9. That Rangeley Lakes School Region shall notify the Board by affidavit or other proof of the date of posting and of final compliance with this order. Dated at Augusta, Maine, this 29th day of January, 1992. MAINE LABOR RELATIONS BOARD /s/____________________________________ The parties are advised Pamela D. Chute of their right pursuant Alternate Chair to 26 M.R.S.A. 968(5)(F) (Supp. 1991) to seek review of this decision and order by the Superior Court by /s/___________________________________ filing a complaint, in Howard Reiche, Jr. accordance with Rule 80C Employer Representative of the Maine Rules of Civil Procedure, within 15 days of the date of this decision. /s/___________________________________ George W. Lamberston Employee Representative ___________________________________ 20In the event that the Board's Decision and Order is appealed and is affirmed by the Maine Superior Court, the words in the Notice "Posted by Order of the Maine Labor Relations Board" shall be altered to read "Posted by Order of the Maine Labor Relations Board, affirmed by the Maine Superior Court." -29- NOTICE TO EMPLOYEES POSTED PURSUANT TO AN ORDER OF THE MAINE LABOR RELATIONS BOARD AFTER A HEARING IN WHICH ALL PARTIES HAD AN OPPORTUNITY TO PRESENT EVIDENCE, IT HAS BEEN DETERMINED THAT WE HAVE VIOLATED THE LAW AND WE HAVE BEEN ORDERED TO POST THIS NOTICE. WE INTEND TO CARRY OUT THE ORDER OF THE MAINE LABOR RELATIONS BOARD AND ABIDE BY THE FOLLOWING: WE WILL cease and desist from interfering with, restraining or coercing employees in the exercise of their right to join, form and participate in the activities of organizations of their own choosing or to be represented by said organizations in collective bargaining for terms and conditions of employment. WE WILL cease and desist from discouraging membership in any employee organization by discriminating in regard to hire or tenure of employment or any term or condition of employment. WE WILL immediately and unconditionally offer Edward Smith, Sr., reemployment with the Region as a custodian/maintenance/bus driver. WE WILL pay Edward Smith, Sr., back pay and interest from the date of the cessation of his employment to the date of his accept- ance or rejection of the Region's offer, required in paragraph 3 above, less any back pay and interest attributable to the 81 days between July 18, 1991, and October 7, 1991. WE WILL restore to Smith all benefits to which he would have been entitled during the period between his termination and the date of his acceptance or rejection of the Region's offer, required in paragraph 3 above, less those attributable to the above-mentioned 81-day period. _____________ ____________________________________ _____________ Date For the Rangeley Lakes School Region Title This notice must remain posted for 60 consecutive days from the date of posting. Any questions concerning this notice or compliance with its pro- visions may be directed to: STATE OF MAINE MAINE LABOR RELATIONS BOARD STATE HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015 THIS IS AN OFFICIAL GOVERNMENT NOTICE AND MUST NOT BE DEFACED.