STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 84-04
Issued: November 8, 1983
_________________________________
)
COUNCIL 74, AMERICAN FEDERATION )
OF STATE, COUNTY AND MUNICIPAL )
EMPLOYEES, AFL-CIO, (AFSCME), )
)
JOAN ROSS )
)
and )
)
ROBERT ROSS, )
)
Complainants, ) DECISION AND ORDER
)
v. )
)
TIMOTHY RICHARDSON, )
Sheriff of Penobscot County, )
)
and )
)
PENOBSCOT COUNTY COMMISSIONERS, )
)
Respondents. )
_________________________________)
The question presented in this case is whether the prohibited practices
complaint filed by Council 74 of the American Federation of State, County and
Municipal Employees, et al. (Council 74) confers jurisdiction on this agency
and/or states a claim upon which relief can be granted. The complaint alleges
that Timothy Richardson (Richardson), the Sheriff of Penobscot County, engaged
in various acts of harassment and discrimination against Joan and Robert Ross,
two former employees of the Penobscot County Sheriff's Department who were not
"public employees" within the meaning of 26 M.R.S.A. Section 962(6) (1974 &
Supp. 1982) at the time of the acts complained of. Richardson filed an answer
and affirmative defenses to the complaint on September 7 and 9, 1983, alleging
that since neither of the affected employees were "public employees," this agency
lacks jurisdiction over the case and the complaint does not state a claim upon
which relief can be granted. The Penobscot County Commissioners (Commissioners)
-1-
filed an answer to the complaint on September 7, 1983.
A pre-hearing conference on the case was held on September 27, 1983,
Alternate Chairman Donald W. Webber presiding. The parties agreed at the pre-
hearing conference to brief the issue whether this agency can proceed on a com-
plaint which alleges violations of purported rights of non-public employees.
Alternate Chairman Webber issued on September 29, 1985 a Pre-Hearing Conference
Memorandum and Order, the contents of which are incorporated herein by reference.
All briefs were filed in the matter by October 19, 1983. Council 74 was
represented by Harold L. Lichten, Esq., Richardson by Phillip D. Buckley, Esq.,
and the Commissioners by Gary F. Thorne, Esq.
JURISDICTION
Council 74 is the bargaining agent within the meaning of 26 M.R.S.A. Section 968
(5)(B)(1982) for a bargaining unit of Penobscot County Sheriff's Department employees.
Joan Ross and Robert Ross, the Sheriff's Department employees whose purported rights
are asserted in Council 74's complaint, were not "public employees" at any time
relevant to these proceedings. Sheriff Richardson and the Penobscot County Commis-
sioners are "public employers" as defined in 26 M.R.S.A. Section 962(7) (1982).
The jurisdiction of the Maine Labor Relations Board to consider this case lies in
26 M.R.S.A. Section 968(5) (1974 & Supp. 1982).
FINDINGS OF FACT
1. Council 74's prohibited practices complaint, filed on August 16, 1983,
alleges that Sheriff Richardson engaged in various acts of harassment and in-
timidation against Joan Ross and Robert Ross because they supported the union.
These acts are alleged to have caused Joan Ross to resign from the Sheriff's
Department and to have resulted in the discharge of Robert Ross. The complaint
alleges that the Sheriff's actions violated 26 M.R.S.A. Section 9640)(A), (B),
(C) and (E) (1974). The Rosses are wife and husband.
2. The parties agreed at the pre-hearing conference that neither Joan Ross
nor Robert Ross were "public employees" as defined in 26 M.R.S.A. Section 962(6)
(1974 & Supp. 1982) at any time relevant to this proceeding. Joan Ross had not
been employed for six months and accordingly was a "probationary employee"
-2-
excluded from the definition of "public employee" by 26 M.R.S.A. Section 962(6)
(F) (1974), while Robert Ross was an "on-call employee" within the meaning of
26 M.R.S.A. Section 963(6)(G) (1974).
DECISION
The first question we consider is whether the Labor Relations Board can
ever within the limits of the authority set forth in the Municipal Public Em-
ployees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. (Act), proceed
to hear a complaint which alleges that discriminatory actions were taken against
non-public employees. We hold that in limited situations it can. In resolving
this question we look to the case law dealing with an analogous situation under
the National Labor Relations Act (NLRA) - that involving the discipline or dis-
charge of supervisors. Just as probationary and on-call employees are expressly
excluded from coverage of our Act, so too are supervisors expressly excluded
from coverage of the NLRA. 29 U.S.C.A. Section 152(3). Just as probationary and
on-call employees in Maine are not protected by the state's labor relations
statutes, then, neither are supervisors protected by the NLRA. Since excluded
employees are not protected by the labor relations statutes, the general rule
is that discriminatory actions by an employer against excluded employees are not
violations of labor law.
This lack of statutory protection does not mean that the National Labor Rela-
tions Board is powerless to act in certain circumstances involving discipline or
discharge of a supervisor, however:
"There are limited exceptions to the rule that employer conduct
towards supervisors does not violate the Act. These exceptions pro-
tect [covered] employees' right 'to have the privileges secured by
the Act vindicated through the administrative procedures of the Board.'
. . . The exceptions have been construed narrowly." (citations omitted).
NLRB v. Nevis Industries, Inc., 647 F.2d 905, 910 (9th Cir. 1981); see also Auto-
mobile Salesmen's Union v. NLRB, 711 F.2d 303, 886 (D.C. Cir. 1983). The ration-
ale for permitting these limited exceptions is as follows:
"Though the Board concededly has no authority, statutory or
otherwise, to reinstate supervisors as 'employees' to redress
their private grievance and penalize respondent, we see no
reason why the Board, in the exercise of its statutory discretion,
-3-
does not have the same remedial power to redress acts of indirect
interference and restraint of ordinary employees through discharge
of supervisors, as it admittedly has to redress acts of direct in-
terference and restraint with the rights of the same employees . . ."
NLRB v. Talladega Cotton Factory, Inc., 213 F.2d 209, 217 (5th Cir. 1954). The
limited circumstances in which the National Labor Relations Board can remedy dis-
criminatory actions against supervisors are commonly identified by the courts
as occuring:
1) when a supervisor is disciplined for testifying before the Board or
during the processing of an employee's grievance,
2) when a supervisor is disciplined for refusing to commit an unfair
labor practice, and
3) when a supervisor who hired his own crew is discharged as a pretext
for terminating his pro-union crew.
See, e.g., Automobile Salesmen's Union, 711 F.2d at 386; NLRB v. Nevis Industries,
Inc., 647 F.2d at 910.[fn]1 The common thread running through these exceptions is
that the action taken against a supervisor under these circumstances may be so
prejudicial to covered employees' rights as to warrant NLRB remedial action to
protect these rights.
We think these limited exceptions apply with equal force to public sector
cases in Maine which involve discriminatory action by the employer against ex-
cluded employees. As previously noted, probationary and on-call employees as
well as the other employees excluded by 26 M.R.S.A. Section 962(6) (1974 & Supp.
1982) have the same status under our Act as supervisors do under the NLRA. Actions
against excluded employees, particularly in the circumstances outlined above,
can be nearly as coercive to the protected rights of covered employees as if
the actions were taken directly against the protected employees themselves.
Certainly we should not allow an employer to accomplish something through the
discipline or discharge of excluded employees which he could not lawfully accom-
plish by the same actions against covered employees. We therefore hold that this
_______________
1 Prior to its decision in Parker-Robb Chevrolet, Inc., 262 NLRB No. 58
(1982), the National Labor Relations Board recognized an exception to
the general rule when the discipline or discharge of a supervisor was
an "integral part" of a course of conduct aimed at interfering with the
rights of protected employees. See, e.g., DRW Corp., 248 NLRB 828 (1980).
This line of cases was overruled in Parker-Robb Chevrolet, however, because
the NLRB felt that the exception could, contrary to the intent of Congress,
protect supervisors who engage in union activities. We have no occasion in
the present case to decide whether the "integral part" exception should
apply in Maine.
-4-
agency does have jurisdiction to hear and decide cases involving excluded
employees when the complaint alleges facts which might fall within one of
the limited exceptions noted above.
The next question we consider is whether the allegations in Council 74's
complaint make out any exception to the general rule that an employer's actions
against excluded employees do not violate the Act. We find that they do not.
The allegations in the complaint are directed solely at the purported rights of
the two excluded employees. There is no allegation that the Sheriff's actions
had any effect whatsoever on the rights of protected employees. Moreover, no
factual allegation suggests that any of the recognized exceptions are present
in this case. We disagree with our dissenting colleague's argument that the
allegation that Robert Ross was present at a hearing before this agency and
then was fired the next day is sufficient to raise the exception regarding ex-
cluded employees who testify before the Board. Ross did not testify before us,
and there is no allegation that he has testified in support of protected employ-
ees in any labor proceeding. We are unwilling to construe the exceptions to
the general rule as broadly as does our dissenting colleague, because to do so
could ultimately bring excluded employees under the protection of the Act,
contrary to the Legislature's obvious intent.
Having concluded that the allegations in the complaint do not make out any
exception to the general rule that discriminatory act against excluded employees
do not violate the Act, we must dismiss the complaint for failure to state a
claim. There is no point in holding a hearing when our ultimate conclusion can
only be that the affected employees are not entitled to the Act's protection. Our
action should not be construed in any sense as condonation of any of the Sheriff's
actions against the Rosses. If the allegations in the complaint are true, then
this is a serious matter. We hold only that since the Rosses are not public em-
ployees, they are not entitled to the protection of the Act under the circumstances
of this case.
ORDER
On the basis of the foregoing findings of fact and discussion and by virtue
of and pursuant to the powers granted to the Maine Labor Relations Board by
26 M.R.S.A. Section 968(5) (1974 & Supp. 1982), it is ORDERED:
-5-
Council 74's prohibited practice complaint filed in this
proceeding on August 16, 1983 is dismissed.
Dated at Augusta, Maine this 4th day of November, 1983.
MAINE LABOR RELATIONS BOARD
/s/_______________________________________
Donald W. Webber, Alternate Chairman
/s/_______________________________________
Thacher E. Turner, Employer Representative
Employer Representative Harold S. Noddin filed a dissenting opinion.
The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968(5)
(F) (1982), to seek a review by the Superior Court of this decision by filing
a complaint in accordance with Rule 80B of the Rules of Civil Procedure within
15 days of the date of this decision.
-6-
DISSENTING OPINION
I agree with the majority's holding that in limited circumstances the Board
can remedy discriminatory actions taken against excluded employees. I disagree,
however, with the conclusion that the complaint before us does not contain suffic-
ient allegations to warrant holding a hearing.
Paragraphs 30 through 33 of the complaint allege that Robert Ross accompanied
Joan Ross at a prohibited practices hearing before this agency on June 30, 1983, was
seen by the Sheriff at the hearing, and was fired by the Sheriff the very next day
"in direct retaliation" for his presence at the hearing. This hearing involved
the same parties now before us. No testimony was taken because at the hearing
Sheriff Richardson's counsel signed a stipulation of facts and a consent order by
which the Sheriff admitted committing numerous serious violations of the Act and
agreed to issuance of a strong remedial order by this agency. Council 74, AFSCME
v. Richardson, MLRB No. 83-22 (June 30, 1983).
The allegations concerning the firing of Robert Ross in my opinion fall squarely
within the exception allowing Board remedial action when an excluded employee is
disciplined for appearing before the Board. The courts have universally recognized
this exception, stating that Board action in these cases is required "as an in-
herent protection of its source of information necessary to protect rank-and-file
employees in the exercise of their statutory rights." Oil City Brass Works v. NLRB,
357 F.2d 466, 471 (5th Cir. 1966); see also NLRB v. Carter Lumber, Inc., 507 F.2d
1262 (6th Cir. 1974). It is true that Robert Ross did not testify before the Board,
but neither did any other witness. It is also true that we do not know if Robert
Ross was present at the hearing as a potential witness, as a union supporter, or
as a casual observer. The point, however, is that Council 74's allegations are
sufficient in my mind to warrant a hearing so that the matter can be fully aired and
remedial action ordered if such is required.
I also believe that the allegations regarding Joan Ross are sufficient to re-
quire the holding of a hearing. I agree with the majority that the complaint no-
where expressly alleges that the alleged actions against Joan Ross interfered with
the rights of the protected employees. The complaint does refer to the proceeding
in MLRB No. 83-22, however, and I believe that its obvious thrust is that the
alleged harassment and intimidation of Joan Ross was an integral part of the unlaw-
ful effort, admitted by the Sheriff in Case No. 83-22, to thwart the protected em-
ployees' union activities. Indeed, the Sheriff admitted in the stipulation of
-1-
facts in Case No. 83-22 that he harassed Joan Ross in March, 1983 because she
supported the employees' efforts to unionize. Because I believe that the "in-
tegral part" theory as it applies to probationary employees survives the decision
in Parker-Robb Chevrolet, Inc., 262 NLRB No. 58 (1982), which was limited to super-
visors, I would hold a hearing to determine whether the alleged actions against
Joan Ross were part of the effort to interfere with the rights of the protected
employees.
I agree with the majority's ruling that the exceptions to the rule that em-
ployer actions against excluded employees do not violate the Act must be narrowly
construed. Excluded employees are not granted any rights or protections under the
Act, and we must be careful not to undermine the legislature's decision on this
point. We also cannot allow employers to interfere with impunity with the rights
of protected employees simply by funneling discipline or discharges through excluded
employees. Because I believe the complaint raises this possibility, I would hear
the case.
Dated at Augusta, Maine, this 7th day of November, 1983.
MAINE LABOR RELATIONS BOARD
/s/__________________________________________
Harold S. Noddin, Employee Representative
-2-