City of Bangor v. American Federation of State, County, and Mun. Employees, Council 74

• Decision Date: 08 September 1982
• Parties: 114 L.R.R.M. (BNA) 3501 CITY OF BANGOR v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES, COUNCIL 74, and Maine Labor Relations Board.
• Court: Maine Supreme Court

Page 1129

449 A.2d 1129

114 L.R.R.M. (BNA) 3501

CITY OF BANGOR v. AMERICAN FEDERATION OF STATE, COUNTY, AND MUNICIPAL

EMPLOYEES, COUNCIL 74, and Maine Labor Relations Board.

Supreme Judicial Court of Maine.

Argued June 16, 1982.

Decided Sept. 8, 1982.

Malcolm E. Morrell, Jr., Eaton (orally), Peabody, Bradford & Veague, Clare Hudson Payne, Bangor, for plaintiff.

Sunenblick, Fontaine & Reben, Stephen P. Sunenblick (orally), Portland, for A.F.S.C.M.E.

Wayne W. Whitney, Jr., Maine Labor Relations Board, Augusta (orally), for defendants.

Before McKUSICK, C. J., NICHOLS, VIOLETTE, WATHEN, JJ., and DUFRESNE, A.R.J.

VIOLETTE, Justice.

The plaintiff, the City of Bangor, has appealed from a Superior Court (Penobscot County) judgment affirming in part and modifying in part an order of Maine Labor Relations Board [hereinafter referred to as the MLRB] requiring the city to cease and desist from engaging in certain employment practices and to offer reinstatement, and award back pay and various benefits to several employees who were unlawfully discharged. The defendants, the American Federation of State and County Municipal Employees, Council No. 74 [hereinafter referred to as the AFSCME] and the MLRB, have cross-appealed from that part of the Superior Court decision which reverses the Board's findings, and the remedies dependent thereon, with respect to the employees' date of permanent hire. We deny the plaintiff's appeal and sustain the defendants' cross-appeals.

The City of Bangor hires operations and maintenance employees as permanent, full-time employees or as seasonal laborers. Under the Maine Municipal Public Employees Labor Relations Law, 26 M.R.S.A. §§ 961-972 (1974), "public" employees have the right to join labor organizations. Employees who have been employed for less than six months or who are temporary, seasonal or on-call employees, are not considered "public employees" and therefore do not have a protected right to join unions, are not members of any bargaining unit and thus do not receive the wages and benefits of a unionized employee. See 26 M.R.S.A. § 962(6)(F) and (G). Operations and maintenance employees are represented by the defendant in this case, AFSCME.

By 1976, the city had begun hiring under the title of "seasonal laborer" persons who in fact worked on a full-time, permanent basis. At the same time, the number of full-time, permanent workers in the bargaining unit was declining, from nearly 90 employees in the period between 1974 and 1976 to approximately 74 employees between 1977 and 1978. These changes in the character of the workforce prompted two members of the union to speak to their union representative, Ross Ferrell, about the status of the seasonal employees. Ferrell subsequently met with the union steward and secretary and three seasonal employees who then decided to file a grievance contending that they should have been included in the unit. ¹

The city's Personnel Labor Relations Director, Jack Perry, testified that he then informed Ferrell that the employees would be fired if the grievance were pursued. The employees decided to go forward with their complaint and were fired in October of 1978. Perry subsequently explained the reason for these discharges:

Principally I had had it up to my neck with Ross Ferrell in filing grievances that people weren't filing. I'll tell you frankly that that happened in a couple of cases that went before the Maine Board of Arbitration since that period. And he filed a grievance on these guys relative to benefits that they should be receiving. So I just called Hank [the Director of Operations and Maintenance] and I said "To hell with this. Let's get rid of this damn problem right here and now."

Perry later met with two of the discharged employees, determined that they had not personally filed the grievance, and decided to rehire them, since he thought "it really was not these guys' fault that they did this, why the hell should I punish them?" The grievance was ultimately deemed non-arbitrable.

Undaunted by the employer's actions, the union soon thereafter filed a petition for unit clarification with the MLRB. ² On October 17, 1979, the Board decided that it could not "permit those who exceed 6 months duration, who are in fact permanent employees, and who thus are eligible for public employee status per 26 M.R.S.A. § 962(6)(F), to remain outside of an otherwise wall-to-wall unit." Therefore, the Board ordered that " 'temporary' and 'seasonal' employees who are in fact hired on a permanent basis must henceforth be considered part of the unit when they exceed six months of employment as either 'laborers' or as whatever other existing job classification is most appropriate." This decision was not appealed.

The city received the Board's decision on the unit clarification petition on October 19, 1979. As a result of the Board's decision, the city personnel director called a meeting of all the seasonal employees on October 26, 1979, and informed them that they were terminated as of that date. The union brought a grievance against the city, but the arbitrators determined that they had no jurisdiction over this particular controversy. The union therefore filed a prohibited practices complaint with the MLRB on April 25, 1980, alleging that the city and its personnel director, John Perry, had unlawfully discharged certain employees, failed to provide the employees with the rights and benefits to which they were entitled under the collective bargaining agreement, and otherwise committed prohibited acts. Hearings were held before the MLRB on June 20, 1980, and July 3, 1980, in Bangor. The Board was warranted in finding the following facts.

On October 19, 1979, Randy Henderson, a seasonal laborer who had been employed for more than six months, was told that he had been fired. He testified at the hearing that when he went to discuss his termination with the Personnel Director, "He just had a list of names from a piece of paper, and he said that--something about the union's got a thing out that after six months if there is no permanent position you just can't stay here." When Henderson reapplied for his job in March 1980, and asked Perry whether the labor dispute would have any effect on whether he would be hired, Perry responded that "it didn't look good." Henderson then asked his former work supervisor whether there would be a job for him. After checking with management, the supervisor told Henderson that only new employees could be hired. At least six people subsequently were hired in the job category for which Henderson applied. The Board found that the refusal to rehire Henderson was "because of the City's desire to keep Henderson out of the unit and its general antiunion animus," ³ which rendered the city's action violative of 26 M.R.S.A. § 964(1)(A) and (B).

One week after Henderson was discharged, the meeting between the personnel director and the seasonal employees occurred. Perry told the workers that "because of the decision by the Labor Board we are now out of the year round temporary or seasonal work." When one of the employees asked him what would have happened if the union had not filed the unit clarification petition, Perry responded "if the Union hadn't filed the unit determination, you would probably still be here. We would be running as we would before." Perry testified at the hearing that he understood the Board's decision to mean that anyone who had been employed by the City for six months after the decision was rendered would become a permanent employee. The Board found that four of those fired at the meeting had been permanent employees on October 26, 1979, and were thus entitled to be members of the bargaining unit. ⁴ The Board determined that the discharges were motivated solely by the employees' efforts to be included in the unit, and were therefore unlawful.

Perry contended that he fired all the seasonal people because the city had no "budgeted permanent positions available." However, since the firing, two permanent positions had opened; one was filled by an employee who had been fired. Perry had also re-hired two of the discharged employees, on advice of counsel, as permanent employees. A new category of jobs, "on-call", which was apparently similar to the seasonal positions, was created. Twenty people were hired for the winter of 1979-80 as on-call employees. None of the people hired as on-call employees were paid union wages or benefits. At least twelve more seasonal laborers were hired in the spring of 1980.

Based on these facts, the Board found that the city had violated 26 M.R.S.A. § 964(1)(A) and (B) by 1. discharging solely because of their protected activity four employees who were members of the unit as of October 26, 1979; 2. failing to accord the four employees all the rights, benefits, and working conditions which other members of the unit were receiving; and 3. refusing to rehire Henderson. The Board also found that the city had failed to notify and bargain with the union before discharging the employees, as is required by 26 M.R.S.A. § 964(1)(E). ⁵ The Board held that the city was obligated to bargain over the effects of the discharge (i.e., severance pay, vacation pay, insurance, re-call, etc.). Back pay and reinstatement, among other things, were ordered to remedy the employees' injuries.

The city appealed to the Superior Court from the Board's order, alleging numerous errors. The Superior Court substantially affirmed the Board's findings of violations of 26 M.R.S.A. §§ 964(1)(A), (B), and (E). However, the court found that the Board had improperly ordered that back pay and other benefits for the aggrieved employees were to be computed "according to each employees' true date of permanent hire," since the court had determined that the city had not acted improperly in failing to accord the employees full benefits as of their original date of hire. The court held that the city had reasonably interpreted...