Maryland State Teachers Association

National Labor Relations Board - Board Decisions

Jun 9, 2005

344 N.L.R.B. 819 (N.L.R.B. 2005)

MARYLAND STATE TEACHERS ASSN.
344 NLRB No. 98
819
Maryland State Teachers Association and Jeffrey J.
Dean and Edward Charles Fortney. Cases 5–
CA–31962 and 5–CA–31963
June 9, 2005
DECISION AND ORDER
BY CHAIRMAN BATTISTA AND MEMBERS LIEBMAN
AND SCHAUMBER
On March 24, 2005, Administrative Law Judge Arthur
J. Amchan issued the attached decision. The Respondent
filed exceptions and a supporting brief. The General
Counsel filed an answering brief.
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
briefs and has decided to affirm the judge’s rulings, find-
ings,1 and conclusions2 and to adopt the recommended
Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Maryland State Teachers
Association, Annapolis, Maryland, its officers, agents,
successors, and assigns, shall take the action set forth in
the Order.
Stephanie Cotilla, Esq., for the General Counsel.
Jeffrey E. Rockman and Christopher M. Feldenzer, Esqs. (Se-
rotte, Rockman & Wescott, P.A.), of Baltimore, Maryland,
for the Respondent.

1 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance of all the relevant evidence convinces us that they are incorrect.
Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d 362
(3d Cir. 1951). We have carefully examined the record and find no
basis for reversing the findings.
No exceptions were filed to the judge’s dismissal of complaint alle-
gations that the Respondent violated Sec. 8(a)(1) by making job-
security threats and by interrogating employees.
2 We conclude that Respondent Assistant Executive Director Dale
Templeton told employees Jeffrey Dean and Edward Fortney that she
was tired of receiving their letters and that the letters would have to
stop. The Respondent contends that Templeton effectively repudiated
these remarks. In this regard, the Respondent points to an alleged
statement by Templeton to the employees that she was not threatening
discharge. We find that the Respondent did not prove that Templeton
made the allegedly curative statement. We accordingly reject the con-
tention on this basis and find it unnecessary to decide whether the al-
leged statement would have effectively repudiated the unlawful re-
marks. The only evidence suggesting that Templeton made the alleged
statement is language in Dean’s Board affidavit. However, Dean’s
affidavit was not introduced into evidence, Dean denied at the hearing
that Templeton made the alleged statement, no other witness testified
about it, and Karen Dean’s written notes of the meeting (that the judge
credited as showing what was said at the meeting) do not refer to
Templeton’s alleged statement.
DECISION
STATEMENT OF THE CASE
ARTHUR J. AMCHAN, Administrative Law Judge. This case
was tried in Baltimore, Maryland, on January 20, 2005. Jeffrey
Dean and Edward Fortney filed the charges that give rise to this
case on June 8, 2004. The General Counsel issued a consoli-
dated complaint on September 24, 2004. This complaint al-
leges that Respondent, the Maryland State Teacher’s Associa-
tion (MSTA), by Dale Templeton, its assistant executive direc-
tor for affiliates and advocacy, violated Section 8(a)(1) of the
Act during a meeting with Dean and Fortney on December 17,
2004. The General Counsel alleges that Respondent, by
Templeton interfered with, restrained, and coerced Dean and
Fortney in the exercise of their Section 7 rights to engage in
concerted activities for the purpose of their mutual aid or pro-
tection.
Specifically, the General Counsel alleges that Respondent,
by Templeton, violated the Act by telling Dean and Fortney
that she was tired of receiving letters they had written regarding
the terms and conditions of their employment, that such letters
would have to stop if Dean and Fortney were to remain Re-
spondent’s employees and that because they had written such
letters their jobs would be the first ones eliminated if Respon-
dent’s membership did not increase. Finally, the General
Counsel alleges that Templeton violated the Act by interrogat-
ing Dean and Fortney as to whether they had filed a complaint
with the Maryland Department of Labor, Licensing and Regula-
tion concerning the frequency with which they were being paid
by Respondent.
On the entire record,1 including my observation of the de-
meanor of the witnesses, and after considering the briefs filed
by the General Counsel and Respondent, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, the MSTA, is a labor organization representing
teachers and education support personnel in the State of Mary-
land. It has its principal office in Annapolis, Maryland. In the
year prior to the issuance of the complaint, Respondent remit-
ted dues and initiation fees in excess of $50,000 to the national
headquarters of the National Education Association in Wash-
ington, D.C. Respondent admits and I find that it is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.
II. ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent retained the services of Jeffrey Dean and Ed-
ward Fortney as educational support personnel (ESP) consult-
ants in February 2002.2 Respondent informed Dean and Fort-
ney that they would be independent contractors and each signed

1 Respondent’s motion to correct the transcript in the manner stated
in the appendix to its brief is granted.
2 Fortney’s employment with MSTA ended in February 2004, sev-
eral months after filing the instant charge. Dean filed earlier charges
which were dismissed by the General Counsel.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD820
a consultant contract. Dean and Fortney were two of three such
consultants retained to work in the Maryland counties on the
Eastern Shore of the Chesapeake Bay. Their duties were pri-
marily to recruit members for the MSTA among education
support workers, such as school clericals and food service
workers.
Dean and Fortney worked out of their homes and for a year
and half and were paid “portal to portal,” i.e., from the time
they left their residences until the time they returned. They
were supposed to work an average of 20 hours per week, al-
though on occasion they apparently worked considerably more
than that. Dale Templeton, Respondent’s assistant director for
affiliates and advocacy, was their direct supervisor. She tried
initially to give Dean and Fortney assignments close to their
residences. Both live in the southern portion of the Eastern
Shore, near the Virginia border. Dean lives in Princess Anne,
Maryland, in Somerset County, near Salisbury. Fortney lives in
Berlin, Maryland, in Worcester County, which is located 9
miles west of Ocean City.
Due to the resignation of another ESP consultant, Respon-
dent made Fortney a full-time temporary employee from Octo-
ber 2002 until August 2003. He then reverted to his position as
a 20-hour a week ESP consultant. Dean and Fortney’s relation-
ship with Templeton began to deteriorate on July 29, 2003,
when they approached her at the end of a leadership training
retreat in Salisbury.
The two told Templeton, or demanded that Respondent
change their status from independent contractors to employees
by August 1, 2003, that they be included in either one of the
two existing bargaining units for MSTA employees, and that
their assignments be changed. By all accounts, Templeton
reacted unfavorably to Dean and Fortney’s requests or de-
mands, and told them that at least one request was ludicrous.
Dean and Fortney presented Templeton with a letter on the
morning of July 30, 2003. It reiterated their requests or de-
mands from the prior evening and asked that MSTA reimburse
Dean in the amount of $3375 and Fortney in the amount of
$1500 for their payments of self-employment tax. The letter
further notified Templeton of Dean and Fortney’s intention to
file a claim with the Maryland Division of Labor and Industry
on August 4, and possibly with the Federal Internal Revenue
Service, if their demands were not met. Dean and Fortney also
drafted a petition seeking support from other MSTA members
and were able to get two individuals to sign it.
On the afternoon of July 30, Templeton invited Dean and
Fortney to meet with her. At that meeting she asked them if
they had printed their petition on MSTA’s copier. She was
apparently no more receptive to their requests/demands than
she had been the prior evening. On July 31, Templeton re-
sponded to Dean and Fortney’s July 30 letter in writing (R.
Exh. 1). On August 4, 2003, after consulting with Fortney,
Dean filed with the IRS a request for a “Determination of
Worker Status for Purposes of Federal Employment Taxes and
Income Tax Withholding.”
Dean and Fortney mailed Templeton a letter on August 8,
2003, asking that Dean’s assignments be expanded from
Wicomico County to include Somerset County, and that Fort-
ney, whose assignments had been in Somerset and Worcester
Counties, be assigned to Caroline, Dorchester, and Worcester
counties.3 Templeton called Dean and Fortney at the MSTA
Wicomico County Office in Salisbury on August 20 about their
assignments. They wrote her on August 27, to confirm that
effective September 1, 2003, Templeton had assigned Dean to
Wicomico, Worcester, and Somerset Counties, the three most
southern counties of the Eastern Shore and had assigned Fort-
ney to Dorchester, Caroline, Talbot, Kent, and Queen Anne’s
Counties, the middle of the Eastern Shore.
Templeton sent Dean and Fortney an email on September 3,
2003, to clarify their work locations. In that email she told
Dean and Fortney that neither was assigned to work out of the
Wicomico office and that there should be little, if any, need for
Fortney to be at the Wicomico office since he was assigned to
the mid-shore counties. She also wrote, “I do not want any
more letters or emails regarding these assignments. If you are
not sure what you should be doing between now and then, clar-
ify it with Jackie.”4
On October 3, 2003, Templeton sent Dean and Fortney an-
other email requesting them to meet with her on October 23, to
discuss restructuring the Eastern Shore ESP consultant posi-
tions. They wrote to Templeton’s boss, Betsy Moyer, MSTA’s
executive director, on October 6, expressing concerns about
attending the meeting and accusing Templeton and their imme-
diate supervisor, Jacqueline Harris, of “retaliatory, threatening
and abusive behavior.” Also, on October 6, 2003, MSTA
Counsel Susan Russell filed a response with IRS to Dean’s
request for a determination of his status.
On October 23, Dean and Fortney met with Templeton, Har-
ris, and Susan Russell, chief counsel for the MSTA. Dean and
Fortney brought with them Karen Dean, Jeffrey’s wife, who is
an attorney. The MSTA representatives would not allow Karen
Dean to attend the meeting. MSTA presented Dean and Fort-
ney a memorandum (R. Exh. 2) that announced a change in
their status from independent contractors to part-time/casual
(20-hour per week) employees. It also assigned Dean to the
MSTA office in Salisbury and Fortney to the MSTA office in
Denton (Caroline County) and provided that they would no
longer be paid “portal to portal.” Dean and Fortney objected to
the termination of their portal to portal pay and the assignment
of Fortney to Denton, which is approximately an hour-and-a-
half commute from his residence.5
Dean and Fortney also requested that they be paid every 2
weeks, instead of once a month and that their checks be directly
deposited into their bank accounts. MSTA representatives
promised to explore direct deposit but declined to agree to pay

3 Dean lived in Worcester County; Fortney in Somerset. Dorchester
and Caroline are to the north and west of Wicomico County, which in
turn is north and west of Worcester and Somerset.
4 Jacqueline Harris was designated MSTA’s Eastern Shore field di-
rector effective September 1, 2003. In that capacity, she became Dean
and Fortneys’ direct supervisor.
5 The memorandum also reiterated that Dean and Fortney were ex-
cluded from the two existing bargaining units for employees of MSTA.
MARYLAND STATE TEACHERS ASSN. 821
Dean and Fortney every 2 weeks.6 Later, MSTA arranged for
direct deposit of Dean and Fortney’s paychecks.
On November 7, Templeton orally reprimanded Dean for not
using a payroll dues-deduction form in signing up new mem-
bers. Templeton committed the reprimand to writing on No-
vember 19 (R. Exh. 4). Executive Director Betsy Moyer wrote
Dean and Fortney on November 18, rejecting their allegations
of retaliatory, threatening, or abusive behavior by Templeton or
Harris.
On December 1, Dean responded to Templeton concerning
the reprimand, and both Dean and Fortney wrote to the MSTA
board of directors, complaining of unfair treatment by MSTA,
particularly by Templeton and Harris.
Dean and Fortney filed a complaint with the State of Mary-
land’s Department of Labor, Licensing and Regulation con-
cerning the frequency of their paychecks in early December
2003. The administrator of that department sent a letter to
Templeton dated December 9, 2003, informing her that Mary-
land statutes required an employer to pay employees at least
every 2 weeks or twice a month, unless employees are classi-
fied as administrative, executive, or professional. Dean, Fort-
ney, and three other ESP employees were notified on December
19, that effective January 4, 2004, they would be paid every 2
weeks (R. Exh. 5).7
B. The December 17, 2003 Meeting
Dean, Fortney, and Karen Dean met with Templeton, Harris,
and Moyer for about 2 hours on the morning of December 17,
2003 at the MSTA’s office in Salisbury. Dean and Fortney
complained about Fortney having to commute to Denton,
Maryland, and asked that he be assigned to Salisbury.
Templeton replied that Salisbury was not within the area as-
signed to Fortney. Dean and Fortney then requested that they
be paid every 2 weeks and that they be allowed to join one of
the two existing collective-bargaining units.
The MSTA representatives said that as part-time casual em-
ployees, Dean and Fortney were not eligible to be included in
either existing bargaining unit. There was a discussion as to
whether Fortney could work at the MSTA office in Dorchester
County (Cambridge), which was closer to his home than the
MSTA office in Denton. Dean and Fortney proposed that Fort-
ney be paid from the time he entered Dorchester County, rather
than when he arrived at the office. MSTA promised only to
look into the possibility of having Fortney work in the Dorches-
ter office.
Dean and Fortney also testified that during a discussion of
their poor working relationship with Templeton and Harris,
Templeton told them that their jobs were not guaranteed in the
budget and that if MSTA membership did not increase, or if
MSTA eliminated jobs, theirs would be the first ones elimi-
nated. They also testified that Templeton told them that if they

6 Respondent did not elicit any testimony to contradict Dean and
Fortney’s account of the October 23 meeting. I therefore credit the
charging parties’ testimony in this regard.
7 This memo is dated 2 days after the meeting at issue with regards
to the 8(a)(1) allegations in the instant case. Additionally, the IRS
advised the MSTA in February 2004 that Dean was, as he had alleged,
an employee for purposes of Federal income tax.
were going to continue to be employed by MSTA, their letter-
writing would have to stop. Dean and Fortney also testified
that Templeton asked them if they had written to the State of
Maryland about the frequency of their paychecks.
Templeton denies mentioning Dean and Fortney’s job secu-
rity at all. She also denies that there was any discussion of
MSTA’s budget at the December 17, meeting. She concedes
that she told Dean and Fortney that she assumed that they were
the ones who had written the State of Maryland complaining
about being paid once a month.8 She also concedes that in the
discussion of the Charging Parties’ allegations of a hostile work
environment, she told them:
[S]o one of the pieces was I said if, you know, I’m trying to
[get?] clear if you mean by a hostile work environment that,
you know, where you get directives to do a task that your—if
you’re reprimanded for not doing your work, if that’s the case
and if, and if every time we turn around a letter keeps, you
know, we keep getting responses, than that’s going to be a
problem. That’s what I said as far—and it’s a problem as far
the relationship between the management and, and staff.
Tr. 176.
Jacqueline Harris generally corroborated Templeton’s ac-
count of the meeting.
In resolving the conflict in the testimony of Dean and Fort-
ney on the one hand, and Templeton and Harris on the other, I
rely largely on the testimony of Karen Dean and her notes taken
at the meeting. Karen Dean, who was present during the entire
meeting, did not testify to any statements by Templeton regard-
ing Jeffrey Dean and Fortney’s job security or about the impli-
cations of the MSTA budget to their job security. Due to this, I
credit Templeton’s denial. Karen Dean also testified that
Templeton said she would ask the other ESP employees if they
wanted to be paid twice a month. However, Karen Dean testi-
fied that Templeton stated in a very hostile tone that she was
tired of receiving letters from Jeffrey Dean and Fortney and
that they would have to stop. I find on the basis on Karen
Dean’s testimony that Templeton told Jeffrey Dean and Fortney
that the letters would have to stop, but did not explicitly address
the consequences if they continued to write such letters.
In its brief, Respondent argues that Templeton’s statement
about the Charging Parties’ letters did not violate Section
8(a)(1) because, when taken in context, her remarks clearly
address only Respondent’s complaints about their assignments
and Dean’s response to his reprimand. I reject this argument.
First of all, Fortney and Dean had a protected right to concert-
edly seek a modification to their work assignments. Respon-
dent was not obligated to satisfy their requests, but it is prohib-
ited from restraining, coercing, or interfering with their entreat-
ies.
Dean’s response to his reprimand is the only relevant letter
that does not constitute protected concerted activity. From an
objective standpoint, Dean and Fortney would not have inter-

8 I credit Templeton’s testimony that she stated that she assumed that
the Charging Parties had written the letter, rather than actually making
an inquiry. Karen Dean’s testimony corroborates Templeton’s on this
point.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD822
preted Templeton’s remarks to pertain only to Dean’s letter,
since many other letters did pertain to the terms and conditions
of their employment. Dean and Fortney would reasonably have
interpreted Templeton’s remarks to refer to any letters touching
on their employment relationship and to have constituted an
implied threat that if they continued to write such letters to her,
to Moyer, or to third parties, that their working relationship
would continue to be unpleasant, or become even more un-
pleasant.
CONCLUSIONS OF LAW
1. Pursuant to my findings of fact, I conclude that Dale
Templeton did not make any specific threats relating to the
charging parties’ job security as alleged in paragraphs 5(b) and
(c) of the complaint. I also find that her remark, that she as-
sumed that Dean and Fortney had filed the complaint with the
Maryland Department of Labor, was not a coercive interroga-
tion that violates Section 8(a)(1) of the Act, as alleged in com-
plaint paragraph 5(d). While her statement was clearly a rhe-
torical question, it was not violative because Jeffrey Dean and
Edward Fortney had been open and notorious about engaging in
concerted protected activity. Indeed, they had previously in-
formed Templeton in writing that they would contact the IRS.
Thus, the charging parties would have reasonably assumed that
Templeton would suspect them as authors of the complaint to
the State of Maryland. Her voicing of her suspicions in these
circumstances, would not restrain, interfere with, or coerce the
charging parties in taking further action to change the terms and
conditions of their employment.
2. However, I find that Dale Templeton’s remarks at the De-
cember 17, 2003 meeting that she was tired of receiving letters
from Jeffrey Dean and Edward Fortney and her admonition,
that such letters would have to stop, violated Section 8(a)(1), as
alleged in complaint paragraph 5(a). Many of their letters
clearly constituted concerted activity for their mutual aid and
protection that is protected by Section 7. Her remarks would
reasonably restrain an employee from further exercising Sec-
tion 7 rights out of fear that conduct displeasing to Templeton
would lead to some form of discrimination, Frazier Industrial
Co., 328 NLRB 717, 726 (1999).
REMEDY
Having found that the Respondent has engaged in certain un-
fair labor practices, I find that it must be ordered to cease and
desist and to take certain affirmative action designed to effectu-
ate the policies of the Act.
On these findings of fact and conclusions of law and on the
entire record, I issue the following recommended9
ORDER
The Respondent, the Maryland State Teachers Association,
Annapolis, Maryland, its officers, agents, successors, and as-
signs, shall

9 If no exceptions are filed as provided by Sec. 102.46 of the Board’s
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses.
1. Cease and desist from
(a) Threatening or coercing employees in the exercise of
their Section 7 rights by telling them that it was tired of receiv-
ing letters constituting concerted protected activity and that
such letters would have to stop.
(b) In any like or related manner interfering with, restraining,
or coercing employees in the exercise of the rights guaranteed
them by Section 7 of the Act.
2. Take the following affirmative action necessary to effec-
tuate the policies of the Act.
(a) Within 14 days after service by the Region, post at its
Annapolis, Maryland facility, copies of the attached notice
marked “Appendix.”10 Copies of the notice, on forms provided
by the Regional Director for Region 5, after being signed by the
Respondent’s authorized representative, shall be posted by the
Respondent and maintained for 60 consecutive days in con-
spicuous places including all places where notices to employees
and members are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not al-
tered, defaced, or covered by any other material. In the event
that, during the pendency of these proceedings, the Respondent
has gone out of business or closed the facility involved in these
proceedings, the Respondent shall duplicate and mail, at its
own expense, a copy of the notice to all current employees and
former employees employed by the Respondent at any time
since December 17, 2003.
(b) Within 21 days after service by the Region, file with the
Regional Director a sworn certification of a responsible official
on a form provided by the Region attesting to the steps that the
Respondent has taken to comply.
(c) IT IS FURTHER ORDERED that the complaint is dismissed
insofar as it alleges violations of the Act not specifically found.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we violated
Federal labor law and has ordered us to post and obey this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join, or assist a union
Choose representatives to bargain with us on your behalf
Act together with other employees for your benefit and
protection
Choose not to engage in any of these protected activities

10 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading “Posted by Order of the Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
MARYLAND STATE TEACHERS ASSN. 823
WE WILL NOT threaten or coerce you from engaging in con-
certed protected activities for your mutual aid or protection by
telling you that we are tired of such activities and that such
activities will have to stop.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce you in the exercise of the rights guaranteed
you by Section 7 of the Act.
MARYLAND STATE TEACHERS ASSOCIATION