Case No. 87-A-04
                                           Issued:  January 7, 1987
                       Complainant,  )
             and                     )
AFSCME, COUNCIL 93,                  )
                                     )          DECISION AND ORDER
                        Intervenor,  )
             and                     )
                   Public Employer.  )
     In response to the September 29, 1986 filing of petitions by
AFSCME seeking bargaining agent/decertification elections among units
of both Operations/Construction and Clerical/Technical employees of
the Portland Water District (District), an agent of the Maine Labor
Relations Board (Board) conducted simultaneous secret ballot elections
between 1:30 and 3:30 p.m., on Thursday, November 13, 1986, in the
District's basement conference room, located at 225 Douglass Street in
Portland, Maine.  As a result of these elections, in which 114
Operations and Construction employees and twenty-five Clerical and
Technical employees voted, certifications were issued to the incumbent
Teamsters in the Operations and Construction unit and to the peti-
tioning AFSCME in the Clerical and Technical unit.  The prevailing
electoral margins were seven and two votes, respectively.
     On November 18, 1986, David L. Berg, Secretary/Treasurer of
Teamsters Local Union No. 48, filed an "Objection to Conduct of
Election," which alleges that two Clerical and Technical unit
employees otherwise eligible to vote in the election were disenfran-
chised in reliance on an altered Board election Notice.  More specifi-
cally, Berg alleges that the Notice was altered to reflect a one-hour
extension of the time for the closing of the polls, from 3:30 p.m. to


4:30 p.m., and that employees Warren C. Hamilton, Jr., and Mark Ward
entered the polling area, at 3:40 p.m,, after the polls were closed,
and were refused the opportunity to vote by the Board's election
agent.  Berg also suggests that the other two non-voting eligible
Clerical and Technical unit employees may well have been similarly
disenfranchised.  Berg states that "[b]ecause the election was not
properly conducted in a manner in which all eligible voters were
allowed to exercise their right to vote . . . the election . . . is
tainted."  On this basis, Berg requests the results be discounted and
the Clerical and Technical unit election be reconducted.
     On November 20, 1986, AFSCME filed a response to the Teamsters'
election objections which states that "since the two units involved do
exist under a close proximity of interest . . . if the Board finds
that the sterile atmosphere of the election was tainted by any means
. . . a new election by the Board must involve both units."

     On November 25, 1986, the District filed a response.  The
District's response contains affidavits by Ward and Hamilton attesting
to the alteration of two separate notices.  The District's response
notes that "[n]o other employees in either bargaining unit raised
election objections about not being able to vote due to their
misplaced reliance on the altered notices."  The District's response
suggests that application of the persuasive Federal authority would
compel a finding that the Clerical and Technical employee unit elec-
tion was tainted if even one voter was disenfranchised.  The District
lastly states that there were no timely objections regarding
Operations and Construction unit employee disenfranchisement and
therefore there is no alleged basis for conducting an election in any
unit other than in the Clerical and Technical employee unit.
     Upon due notice, on Tuesday, December 9, 1986, the Board, con-
sisting of Chairman Edward S. Godfrey, presiding, Thacher E. Turner,
Employer Representative, and George W. Lambertson, Employee
Representative, convened an evidentiary hearing in the cause.  The
Teamsters union was represented at hearing by Teamsters' Secretary-
Treasurer David L. Berg.  AFSCME was represented by Stephen P.
Sunenblick, Esq.  The District was represented by Peter R. Kraft, Esq.

The Teamsters elicited the testimony of its Chief Steward, John
Emerson, and that of Harvard Brassbridge, Business Agent for Teamsters
Local 340.  No other testimony was offered by any party.
     The Board has jurisdiction over this matter pursuant to 26
M.R.S.A.  968(4) & (5) (1974 & Pamph. 1986).  None of the parties has
contested the Board's jurisdiction over this matter.
                           FINDINGS OF FACT
     Board agent Robert I. Goldman, Esq., conducted two simultaneous
secret ballot bargaining agent/decertification elections between 1:30
and 3:30 p.m., on Thursday, November 13, 1986, in the Portland Water
District's basement conference room, located at 225 Douglass Street in
Portland, Maine.  The following results were obtained.  In the
Operations and Construction unit election ninety-six of the 114 eli-
gible unit members voted.  The incumbent Teamsters received fifty
votes and were recertified as the collective bargaining agent, pre-
vailing over AFSCME by a margin of seven votes.  In the Clerical and
Technical unit election twenty-one of the twenty-five eligible unit
members voted.  AFSCME received eleven votes and was certified as the
exclusive collective bargaining agent, prevailing over the incumbent
Teamsters by a two-vote margin.
     In attendance at the ballot tabulation, which ensued immediately
after the close of the polls at 3:30 p.m., were Goldman, Berg,
Brassbridge, Emerson, Kraft and AFSCME staff Representative Richard V.
Taylor.  Approximately ten minutes after the official close of the
polls two eligible District Clerical and Technical unit employees,
Mark Ward and Warren C. Hamilton, Jr., presented themselves for the
purpose of voting.  They were informed by the election agent that the
polls were closed and that they would not be allowed to vote.
Hamilton stated that he had appeared to vote at that time because a
posted Notice of the election had been altered to reflect a 4:30 p.m.
poll-closing deadline.  Both Ward and Hamilton had work stations
within the building where the polling occurred.

     Emerson had been informed at 7:45 a.m. on the morning of the
balloting, by the District's Douglass Street Water Division Assistant
Superintendent, that a Notice of the election had been altered to
reflect a changed poll-closing deadline.  Emerson immediately verified
that a Notice had been altered.  Emerson could not testify at hearing
as to whether the altered Notice pertained to the Operations and
Construction employee unit or to the Clerical and Technical employee
unit.  Emerson testified that he had observed that on the altered
Notice, posted on the main bulletin board in the hallway near the
polling place, the 1:30 to 3:30 p.m. polling time span had been lined
out and a handwritten "4:30 p.m." substituted therefor.  Neither
Emerson nor any other person present at the tabulation of ballots made
any effort to inspect or obtain the altered Notice after the election.
There is no evidence in the record bearing on when the Notice was
altered.  There is also no allegation or evidence as to who altered
the Notice.
     Emerson urged the Water Assistant Superintendent to notify the
Operations and Construction employees, in the field, of the correct
polling times.  Emerson did not notify the Board, the Board's election
agent, the Teamsters or AFSCME of the altered Notice and did not
attempt to urge the Superintendent of the Clerical and Technical
employees to make any effort to clarify the polling times.  There is
no evidence that AFSCME knew of the alteration prior to the tablula-
tion of the ballots and no evidence that the District made any effort
to clarify the polling time for Clerical and Technical employees.
     Four to six hours after the election Emerson checked the bulletin
boards located both near where the clerks collect payments and in the
stockroom.  The Notices on these two boards had been removed.  The
altered Notice on the main bulletin board was not posted on the day
after the election.
     There is no evidence that any of the eighteen non-voting eligible
employees in the Operations and Construction unit failed to vote in
reliance upon an altered election notice.  No member of the Operations
and Construction employee unit attempted to vote within twenty minutes
after the closing of the polls.  Notices posted on the District's

bulletin boards are often marked or altered.
     The essential goal of the Board in its conduct of representation
elections is to assure that employees be afforded the opportunity to
exercise a free and untrammeled choice.  See Phippsburg School
Department v. AFSCME, Council 93, No. 87-A-02 (Me.L.R.B. Nov. 26,
1986); Bridgton Federation of Public Employees v. Hamill, No. 81-54
(Me.L.R.B. Mar. 3, 1982).  Elemental to this goal is the requirement
that each individual employee in the unit be enfranchised.
Accordingly, the Board will entertain election objections requesting
that elections be reconducted where it is alleged that a group of non-
voting employees, whose number might be outcome-determinative, may
have been disenfranchised by reasonable reliance upon altered Notices
of Board elections. See Board Election Rule 3.07.  Moreover, the
Board's prohibited practices complaint procedures are available to
redress any interference with the election process.  See 26 M.R.S.A.
 964(1)(A) & (2)(A) (1974); Board Election Rule 3.08.
     For the reasons set forth below we find that the Teamsters have
not proved that any employee has been disenfranchised in the instant
case.  We therefore conclude that the Teamsters election objections
must be dismissed.
     There is ample evidence to establish that the employees who
attempted to vote after the close of the polls informed those present
at the tablulation that they were attempting to vote within the
apparent time extension effected by the alteration of the Notice.  The
mere fact that this statement was made, however, does not establish
that these employees attempted to vote late in reliance on the altera-
tion or that their reliance on the alteration was reasonable.  The
record contains only hearsay evidence in this regard.  The District
appended affidavits by Ward and Hamilton in support of its response
to the Teamsters' election objections.  Those affidavits, however,
were never offered as evidence in the case.  Moreover, it was not
established that the direct testimony of Ward and Hamilton was

     The record establishes that Chief Steward Emerson was informed by
the Water Division Assistant Superintendent that a Notice had been
altered and that there was some confusion among the members of the
Operations and Construction unit as to the correct polling period.
The record also establishes that Emerson asked the Assistant
Superintendent to see that the correct poll-closing time of 3:30 p.m.
was relayed to crews in the field.  No similar effort was made by the
Chief Steward concerning the Clerical/Technical unit.
     Although the Board mailed separate notices of each of the two
elections  to the District for posting, Emerson observed only one
altered notice on the main bulletin board and could not state whether
the alteration was contained on a Notice concerning the Clerical and
Technical unit election   Finally, although it was reasonably for-
seeable that the nature of the alteration would be relevant to a
determination of whether reliance reasonably could have been placed
thereon, no party bothered to retain or even inspect the altered
Notice upon completion of the ballot tally.  Accordingly, the
Teamsters election objections must be dismissed as unsupported by the
record evidence.
     There was no evidence tendered at all to establish that any
employee in the Operations and Construction employee unit was
disenfranchised in reliance on the altered Notice.  Additionally, we
note that AFSCME's request for a reconducted Operations and
Construction unit election was conditioned upon the Board's require-
ment of a new election in the Clerical and Technical employee unit.
     It is regrettable that the alteration of the Notice, discovered
early on the day of the election, was not reported to the Board and to
the Board's election agent so that curative measures might have been
undertaken to assure, with absolute certainty, the enfranchisement
of each eligible voter.

     Based on 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(4) & (5) (1974

& Pamph. 1986), it is ORDERED:
     That the Objections to Election filed by the Teamsters on
     November 18, 1986, be and hereby are DISMISSED.
Dated at Augusta, Maine, this 7th day of January, 1987.
                                  MAINE LABOR RELATIONS BOARD
The parties are hereby advised    Edward S. Godfrey
of their right pursuant to 26     Chairman
M.R.S.A.  968(5) (Pamph.
1986) to seek review of this
Decision and Order by the
Superior Court by filing a        /s/____________________________
complaint in accordance with      Thacher E. Turner
Rule 80B of the Rules of Civil    Employer Representative
Procedure within 15 days of
the date of the Decision.            
                                  George W. Lambertson
                                  Employer Representative