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

		 Complainant,  )
	  v.                   )             INTERIM ORDER
		  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.

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.


     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).


     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

     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


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

    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.


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

    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,


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.


     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


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,

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).


     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.


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


STATE OF MAINE                                  MAINE LABOR RELATIONS BOARD
						Case No. 91-22
						Issued:  January 29, 1992

		   Complainant, )
     v.                         )            DECISION AND ORDER
		    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.


     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.


     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


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).


     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


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.


     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.


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

     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


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.


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:


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.


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.


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.


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.


     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.


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.


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.

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.


	  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.


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.


     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


     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.


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


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


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.


     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


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.

	       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


     [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

	       "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


     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


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.


     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

     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.


     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

	 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


	 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.


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





     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

     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 HOUSE STATION 90, AUGUSTA, MAINE 04333 (207) 289-2015