Decision & Order on Election Objections to Election in State of Maine's
Institutional Services Bargaining Unit (77-A-05) and PPC No. 77-37.
STATE OF MAINE MAINE LABOR RELATIONS BOARD
[Case No. 77-A-05, PPC 77-37]
[Issued: August 9, 1977]
___________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION )
)
and )
)
OFFICE OF STATE EMPLOYEE RELATIONS )
)
and )
)
COUNCIL #74, AMERICAN FEDERATION )
OF STATE, COUNTY AND MUNICIPAL )
EMPLOYEES )
___________________________________)
)
THE MAINE STATE EMPLOYEES )
ASSOCIATION )
)
and ) DECISION AND ORDER ON OBJECTIONS
)
RICHARD J. MCDONOUGH ) TO THE INSTITUTIONAL SERVICES
)
v. ) BARGAINING UNIT ELECTION AND
)
THE STATE OF MAINE ) PROHIBITED PRACTICE COMPLAINT
)
and ) CASE NO. 77-37
)
JAMES B. LONGLEY, Governor, )
State of Maine )
)
and )
)
OFFICE OF STATE EMPLOYEE RELATIONS,)
State of Maine )
___________________________________)
This case comes to the Maine Labor Relations Board by way of a letter dated
May 5, 1977, and filed with the Board by John J. Finn, Legal Counsel, Maine State
Employees Association concerning objections to the State Institutional Services
Unit election and by way of a prohibited practice complaint dated May 6, 1977, and
filed with the Board by Richard J. McDonough, President, Maine State Employees
Association on May 6, 1977, concerning the conduct of the parties to the Institu-
tional Services Bargaining Unit election. A request to consolidate the two matters
and expedite the procedure was dated May 6, 1977, and filed by John J. Sears, Staff
Counsel, Office of State Employee Relations, on May 6, 1977. A request that the
Maine Labor Relations Board "proceed with all possible haste to dispose of the ob-
jections and complaints" was dated May 9, 1977, and filed by Charles W. Sherburne,
Executive Director, Council #74, American Federation of State, County and Municipal
Employees. The Maine Labor Relations Board, meeting on May 10, 1977, examined the
documents filed in this matter and determined that it would be appropriate to accel-
erate action on the prohibited practice complaint so that both the objections and
complaint arising out of the election in the Institutional Services Bargaining Unit
could be considered together.
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On May 12, 1977, Jonathan Axelrod, General Counsel, filed on behalf of Teamsters
Local Union #48 a Motion for Leave to Intervene. A consolidated hearing was held
in this matter on Tuesday, May 17, 1977, in the Portland Jetport Conference Room,
Chairman Walter E. Corey presiding with Kenneth Winters, Alternate Employer Repre-
sentative and Michael Schoonjans, Employee Representative. The Motion to Intervene
filed by Mr. Axelrod was denied by the Board at the hearing on May 17, 1977, but
Teamsters Local Union #48 was granted amicus curiae status which would permit the
Local to observe the hearing and file a brief. As a result of the hearing, a brief-
ing schedule was arranged, with final briefs due to be postmarked on or before
June 16, 1977. The Maine Labor Relations Board meeting on July 1, 1977 proceeded to
deliberate on this matter.
JURISDICTION
None of the parties have challenged the jurisdiction of the Maine Labor Rela-
tions Board in this matter, and we conclude that the Maine Labor Relations Board
has jurisdiction to hear and render a decision in this matter as provided in 26 M.R.S.A.
979-G and 979-H.
FINDINGS OF FACT
Upon review of the testimony given at the hearing, as well as the pleadings,
the Board finds:
1. The Maine State Employees Association, having offices and a place of busi-
ness at 65 State Street, Augusta, Maine, 04330, is an employee organization within
the meaning of the State Employees Labor Relations Act and is a petitioner/party in
the election in the State Institutional Services bargaining unit conducted by the
Executive Director of the Maine Labor Relations Board from April 13, 1977 to May 2,
1977.
2. Richard J. McDonough, whose address is 18 Oxford Street, Portland, Maine,
04101, is a state employee and is President of the Maine State Employees Association.
3. The State of Maine is the public employer under the State Employees Labor
Relations Act and is a party to the aforesaid election.
4. James B. Longley, Governor, is the representative of the State of Maine
and responsible for the employer functions under the State Employees Labor Relations
Act.
5. The Office of State Employee Relations is the Governor's designee under the
State Employees Labor Relations Act and at all times relevant hereto was acting for
and in behalf of the State of Maine and James B. Longley.
6. Council 74, American Federation of State, County and Municipal Employees was
a petitioner/party in the election in the State Institutional Services bargaining
unit.
7. On May 2, 1977, a ballot count was conducted by the Executive Director of
the Maine Labor Relations Board in the Institutional Services bargaining unit. The
results of the election as requested by the Executive Director were as follows:
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ELECTION REPORT
Members of the Unit and eligible to vote 1,271
Ballots cast 826
Ballots for the proposition that Maine State Employees
Association SHALL REPRESENT the Institutional Services 326
bargaining unit as their bargaining agent
Ballots for the proposition that Council #74, American
Federation of State, County & Municipal Employees, AFL-CIO 400 1+00
SHALL REPRESENT the Institutional Services bargaining unit
as their bargaining, agent
Ballots for the proposition of NO REPRESENTATION 10
Ballots with no alternative indicated 0
Ballots spoiled and not counted 76
Ballots challenged and set aside under the provisions of
Rule 3.06 of the Election Rules 14
ATTEST:/s/ Parker A. Denaco
Parker A. Denaco, Executive Director
Maine Labor Relations Board
C E R T I F I C A T I O N
I, Parker A. Denaco, Executive Director of the Maine Labor Relations Board for the
State of Maine, do hereby certify as a result of a bargaining agent election, the results
of which are noted hereon, above, conducted from April 13, 1977, to May 2, 1977, for
the Institutional Services bargaining unit of the State of Maine (that Council #74,
American Federation of State, County & Municipal Employees, AFL-CIO SHALL REPRESENT
the aforesaid unit as the duly certified bargaining agent).
Dated at Augusta, Maine, this 3rd day of May, 1977.
By:/s/ Parker A. Denaco
Parker A. Denaco, Executive Director
Maine Labor Relations Board
8. During the course of the election, with the knowledge of the Office of
State Employee Relations and the Maine Labor Relations Board, Teamsters Local Union
No. 48, which had not filed a showing of interest with the Maine Labor Relations
Board and did not appear as a choice on the Institutional Services Unit election
ballot, conducted a campaign urging members of the bargaining unit to vote for it
by sticker or write-in.
9. The Office of State Employee Relations, acting in behalf of the State of
Maine and James B. Longley, refused to publicly take a legal position during the
course of the election as to the validity of sticker or write-in ballots in a bar-
gaining agent election under the State Employees Labor Relations Act. The basis for
the refusal by OSER was to preserve its neutrality in the election and was not mo-
tivated by anti-MSEA or anti-union animus.
10. The Maine State Employees Association, during the course of the election,
sought from the Office of State Employee Relations, use of State bulletin boards
for the purpose of counteracting the sticker/write-in campaign but was refused such
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use by the Office of State Employee Relations.
11. The grounds for said refusal were, inter alia, a "guideline" promul-
gated by the Office of State Employee Relations pertaining to posting of labor
organization campaign material. The "guideline" was applied by the Office of
State Employee Relations to all labor organizations' campaign material and there
was no credible evidence that the Office of State Employee Relations applied the
guideline discriminatorily against the Maine State Employees Association.
12. Pursuant to the direction of the Executive Director of the Maine Labor
Relations Board, the Office of State Employee Relations provided the Executive
Director and the parties to the election an address list for employees eligible
to vote in the Institutional Services bargaining unit.
13. The address list of 1,271 names and addresses supplied by the Office of
State Employee Relations included 34 addresses for which ballots were returned to
the Maine Labor Relations Board as undeliverable. Six of the thirty-four employees
whose ballots were returned used the call-in procedure and were mailed a replace-
ment ballot. Two of the 34 employees resigned from state service prior to the deadline
of May 2, 1977 for voter eligibility. Subsequent to the election, a list of eleven
additional names with incorrect addresses was received by the Office of State Em-
ployee Relations, of which three called for and received a replacement ballot and
two had resigned from state service prior to the deadline of May 2, 1977 for voter
eligibility. Therefore the address list supplied by the employer did have 45
incorrect addresses with 40 of the incorrect addresses being for employees eligible
to vote. Nine of the 40 eligible employees called the Maine Labor Relations Board
and received a replacement ballot.
14. When the inaccuracies in the address list became apparent during the elec-
tion because of ballots returned as undeliverable, the Maine Labor Relations Board,
by letter dated April 15, 1977, requested more accurate information from the Office
of State Employee Relations, but the Office of State Employee Relations denied the
request, indicating the inability to correct address inaccuracies in sufficient time
to allow forwarding a second ballot to eligible voters. No further action was taken
to correct the inaccuracies in the address list except as incidental to call-ins
from employees.
15. The letter dated May 5, 1977 from Mr. Finn raised the following objections
pertaining to the Institutional Services Bargaining Unit Election:
a. The seventy-six (76) ballots containing sticker or write-in votes for
Teamsters Local Union No. 48 were erroneously discounted from the number of ballots
cast, resulting in an erroneous determination that Council 74, American Federation
of State, County and Municipal Employees received a majority vote.
b. The seventy-six members of the bargaining unit who cast sticker or
write-in votes for Teamsters Local Union No. 48 were effectively disenfranchised.
This occurred as a result of misadvice by Teamsters Local Union No. 48 to members
of the bargaining unit with respect to sticker and write-in votes, including through
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means creating the impression of official Maine Labor Relations Board approval
of sticker or write-in votes, the absence of any action by the office of the
Maine Labor Relations Board to counteract the sticker/write-in campaign, the
employer's absence of action and refusal to take action to counteract the sticker/
write-in campaign and the refusal by the employer to permit the Maine State Em-
ployees Association use of the employer's bulletin boards for the purpose of counter-
acting the sticker/write-in campaign.
c. The voting list used in the conduct of the election was inaccurate,
including a significant number of incorrect addresses, and a sufficient effort
was not made to correct the errors when they became apparent during the course of
the election in order to afford a free and fair election.
16. By letter dated May 5, 1977 from Mr. Finn, the following written objec-
tions were filed pursuant to Rule 3.07 of the Rules and Procedures of the Maine
Labor Relations Board:
a. We challenged seven (7) ballots which were not enclosed in secret
ballot envelopes. The grounds for these challenges are that these ballots conflict
with the secret election and secret ballot requirements.
b. We challenged four (4) ballots cast by Kathleen Adams, Marcel Blan-
chette, Marcelle Perry (Carrier) and Stephen B. Williams. The grounds for these
challenges are that the individuals' names did not appear on the voter eligibility
list and, therefore, they appear to be ineligible to vote.
DECISION
The complaint and objections filed with the Maine Labor Relations Board raise
the following issues:
1. Was the Executive Director of the Maine Labor Relations Board correct
in determining that the ballots cast for Teamsters Local Union #48 in the Institu-
tional Services bargaining unit were void and that such void ballots should not be
counted in the universe of ballots for determining the majority status of an em-
ployee organization?
2. Were the actions of Teamsters Local Union #48 grounds for setting aside
the election in the Institutional Services bargaining unit?
3. Did the Maine Labor Relations Board have an affirmative responsibility to
advise the employees in the Institutional Services bargaining unit with respect to
the effect of sticker/write-in ballots?
4. Did the Office of State Employee Relations have an affirmative responsibili-
ty to advise the employees in the Institutional Services bargaining unit with re-
spect to the effect of sticker/write-in ballots?
5. Did the Office of State Employee Relations improperly and discriminatorily
apply guidelines pertaining to the posting of labor organization material against
the Maine State Employees Association?
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6. Were the inaccuracies in addresses in the mailing list and the
employer's failure to correct the inaccuracies grounds for setting aside the
election or evidence of unlawful conduct by the Office of State Employee
Relations?
1. Was the Executive Director of the Maine Labor Relations Board correct
in determining that the ballots cast for Teamsters Local Union #48 in the Insti-
tutional Services bargaining unit were void and that such void ballots should not
be counted in the universe of ballots for determining the majority status of an
employee organization?
The State Employees Labor Relations Act provides in 979-F(2) in part that:
2. Elections.
A. The executive director of the board or his designee upon signed
request of a public employer alleging that one or more state
employees or state employee organizations have presented to it a
claim to be recognized as the representative of a bargaining unit
of state employees, or upon signed petition of at least 30% of a
bargaining unit of state employees that they desire to be repre-
sented by an organization, shall conduct a secret ballot election
to determine whether the organization represents a majority of the
members of the bargaining unit. Such an election may be conducted
at suitable work locations or through the United States mail provided,
nevertheless, that the procedures adopted and employed by the Public
Employees Labor Relations Board shall maintain the anonymity of the
voter from both the employee organizations and the management rep-
resentatives involved.
B. The ballot shall contain the name of such organization and that of
any other organization showing written proof of at least 1O% repre-
sentation of the state employees within the unit, together with a choice
for any state employee to designate that he does not desire to be
represented by any bargaining agent. Where more than one organization
is on the ballot and not one of the 3 or more choices receives a majority
vote of the state employees voting, a run-off election shall be held.
The run-off ballot shall contain the 2 choices which received the larg-
est and 2nd largest number of votes. When an organization receives the
majority of votes of those voting the executive director of the board
shall certify it as the bargaining agent.
Pursuant to 979-G of the State Employees Labor Relations Act and 968 of the
Municipal Public Employees Labor Relations Act, the Maine Labor Relations Board
adopted rules and procedures for the conduct of an election and requires in Rule
3.01 in part that:
"Any organization seeking to appear on the ballot, other than as is
provided in Rule 3.01(B), under the provisions of Title 26, M.R.S.A.,
967, 2, Sub-2, 979, Sub-F, 2, Sub-B or 1025, 2, Sub-B with a l0%
showing of interest, shall present said showing of interest to the Maine
Labor Relations Board within seven (7) days from the date of the official
posting of the election request or petition as required by Rule 3.01(B)
above."
The Decision and Order of the Maine Labor Relations Board issued on February 7,
1977, as a result of the appeal of the Unit Determination Report issued on September
22, 1976, directed the Executive Director to proceed with an election for the Insti-
tutional Services bargaining unit. The Board further stated:
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"Any organization seeking to appear on the ballot for the . . .
Institutional Services Unit, other than those who have previously filed
a petition pursuant to Rule 3.01 of the Rules and Procedures of the
Maine Labor Relations Board, shall file a petition and showing of interest
with the Maine Labor Relations Board within seven (7) days from the date
of this decision and order."
By letter dated February 25, 1977, the Executive Director notified the
parties that both the Maine State Employees Association and Council #74, American
Federation of State, County and Municipal Employees, AFL-CIO, filed sufficient
showings of interest to appear on the ballot as petitioners. The Teamsters Local
Union #48 did not file a petition or showing of interest with the Board to appear
on the ballot in the Institutional Services bargaining unit pursuant to the State
Employees Labor Relations Act and the Rules and Procedures of the Maine Labor Re-
lations Board prior to the deadline of February 14, 1977, or at any time material
herein. The Rules and Procedures of the Maine Labor Relations Board authorize the
Executive Director to make the original determination of "void ballots" in Rule
3.06(B) which provides in part:
Ballots which have been mutilated, spoiled, marked with more than
one choice, or which do not clearly reveal the intent of the voter may
be considered "void ballots" and, when determined as such, shall not be
counted for or against any proposition appearing on the ballot, provided
that ballots shall be liberally construed in favor of validity.
The Executive Director determined that the ballots cast for Teamsters Local
Union #48 were spoiled since they did not comply with the instructions on the
ballot to place "no marks other than an "X" or "[checkmark]" in one box . . . ." and were
spoiled since Teamsters Local Union #48 did not qualify under the statutory
procedure to appear on the ballot. We concur in the determination of the Execu-
tive Director. Any organization wishing to appear on the ballot has an oppor-
tunity to do so by following the statutory procedure as set forth in 26 M.R.S.A.
979-F(2). An organization which fails to follow the statutory procedure should
not be allowed to benefit from its failure. There is no provision in a Maine
Labor Relations Board election for a write-in vote and voters should not be
allowed to widen the choice beyond those appearing on the ballot. Additionally,
the instructions on the ballot clearly restrict the choices available in the
election. It is therefore the opinion of the Board that the ballots in the Insti-
tutional Services election which contained a sticker or write-in vote for Teamsters
Local Union #48 were spoiled ballots and should be considered void ballots pur-
suant to Rule 3.06(B).
The second part of this issue is whether or not the void ballots should be
counted in the universe of ballots for determining the majority status of an
employee organization. Title 26 M.R.S.A. 979-F (2)(B) states in part:
When an organization receives the majority of votes of those
voting, the executive director of the board shall certify it
as the bargaining agent. (emphasis added)
The Rules and Procedures of the Maine Labor Relations Board provide in
Rule 3.10 that:
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In all elections a majority of the valid votes cast shall
determine the employee representative designated or selected
by the employees in the defined appropriate unit. (emphasis
added)
It has already been determined that the votes cast for Teamsters Local
Union #48 were "void ballots" and void ballots, as stated in Rule 3.06(B)
"shall not be counted for or against any proposition
appearing on the ballot . . . ."
A void ballot is a nullity and cannot be a valid vote for the purpose of
determining a majority representation.
In comparing the language in the State Employees Labor Relations Act with
that of the National Labor Relations Act, (NLRA) we note that the NLRA requires
that an organization represent "a majority of employees" in a bargaining unit to
be certified as the bargaining agent. The National Labor Relations Board has in-
terpreted "a majority of employees" to mean a majority of the votes cast in a
certification election.
Section 9(a) of the NLRA which states "the majority of employees in a unit"
has been interpreted to mean "a majority of the eligible employees voting in
the election." Matter of RCA Manufacturing Co., Inc., 2 NLRB 159; 177 (1936).
Subsequent cases have determined that the majority also means the majority of
votes of those eligible to vote who cast valid ballots. See Sprague Electric Co.,
99 NLRB 667 (1952), Matter of Great Lakes Pipeline Co., 57 NLRB 369 (1944) and
Woodmark Industries, Inc., 80 NLRB 1105, 23 LRRM 1209 (1948).
In examining the provisions of the State Employees Labor Relations Act, we
find that the Maine Legislature has already resolved the problem faced by the
National Labor Relations Board in the Matter of RCA, supra, by using the language
"a majority of votes of those voting." (26 M.R.S.A. 974-F(2)(B))
The Maine Labor Relations Board by its rules amplified the language in the
State Employees Labor Relations Act similar to the NLRB amplification in Sprague
Electric, Great Lakes and Woodmark Industries, supra. We therefore conclude that
the void ballots should not be counted in the universe of ballots for determining
the majority status of an employee organization and affirm the decision of the
Executive Director.
2. Were the actions of Teamsters Local Union #48 grounds for setting aside
the election in the Institutional Services bargaining unit?
The Teamster conduct complained of was that of sending a notice to the
employees in the Institutional Services bargaining unit which contained a copy of
the official election ballot with the State of Maine seal, and the words "Sample
Ballot" printed across it. Above the ballot was the following:
To: Employees voting in the Institutional Services Unit Election
A copy of the ballot which will be mailed to you on April 13th is
printed below. Teamsters Local Union No. 148 is not listed on the
official ballot. Therefore, if Teamsters Local Union No. 48 is
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your choice for Union Representation in the Institutional
Services Unit Election, use the attached self-stick label
and apply it securely at the bottom of your ballot.
Follow instructions of the Maine Labor Board for mailing.
Below the ballot was a self-stick label which could be detached and below
the label, the following:
"Teamsters Local Union No. 48 Organizing Committee"
We condemn the use of the official ballot with the accompanying seal of
the State of Maine when used in election propaganda. The use of such official
election material, if altered or added to other material, could confuse or mis-
lead eligible voters by giving the impression that the Maine Labor Relations
Board approves of the altered form or additional material. If a successful party
to an election had violated this rule against the improper use of official elec-
tion material, the Board would, upon the filing of a proper objection, set aside
the election and order a new election be conducted.
However, in this case, the rule was not violated by the successful party to
an election, but by an organization that was neither a party to the election nor
the winner of the election. To allow an organization which is not the success-
ful party to frustrate the statutory procedures for the selection of a bargaining
agent is unfair. The election procedures which require, inter alia, a 1O% show-
ing of interest must be safeguarded and the organizations which have complied with
those procedures should not be adversely affected by the actions of a non-comply-
ing organization. It is therefore the opinion of the Maine Labor Relations Board
that the conduct of Teamsters Local Union #48 was improper, but not such conduct as
sufficient to warrant setting aside the results of the election in the Institu-
tional Services bargaining unit and the certification of Council #74, American
Federation of State, County and Municipal Employees as the bargaining agent for the
employees in the Institutional Services Bargaining unit.
3. Did the Maine Labor Relations Board have an affirmative responsibility to
advise the employees in the Institutional Services bargaining unit with respect to
the effect of sticker/write-in ballots?
The Maine Labor Relations Board is a Board with limited jurisdiction. The
Board is empowered to prevent prohibited acts and review decisions of its executive
director when either a complaint or appeal is filed with it. The Board may adopt
rules and "shall also, upon its own initiative or upon request, issue interpretive
rules interpreting the provisions of this chapter." (26 M.R.S.A. 968(3))
Any party could have requested the Maine Labor Relations Board to issue an in-
terpretative ruling on the applicable section of the statute or the Rules and
Procedures of the Maine Labor Relations Board or could have protested the conduct
by way of a prohibited practice complaint. However, nobody made such a request
or filed such a complaint. If a party is unable to or neglects to follow the
statutory procedure, they should not look to the Maine Labor Relations Board to
remedy that neglect. We find nothing in the statute or Rules and Procedures of the Maine
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Labor Relations Board which requires the Maine Labor Relations Board to
have acted, sua sponte, and to have taken a position on the validity of
sticker/write-in ballots. We conclude that there was no affirmative re-
sponsibility on the part of the Maine Labor Relations Board to advise em-
ployees in the Institutional Services bargaining unit with respect to the
effect of sticker/write-in ballots.
4. Did the Office of State Employee Relations have an affirmative
responsibility to advise the employees in the Institutional Services bargain-
ing unit with respect to the effect of sticker/write-in ballots?
The Office of State Employee Relations is the representative of the
Governor of the State of Maine for purposes of collective bargaining, the
public employer under the State Employees Labor Relations Act. Actions by
the Office of State Employee Relations, although made in good faith, could
interfere with state employee rights guaranteed by 26 M.R.S.A. 979-B, by en-
couraging or discouraging membership in an employee organization and interfer-
inq with the formation of an employee organization in violation of 26 M.R.S.A.
979-C(1)(A, B, and C). Consequently, the Office of State Employee Relations
must exercise extreme caution in its actions, especially during an election.
The agency with the authority to issue a legal opinion concerning the statute
or rules is the Maine Labor Relations Board and we do not find the Office of State
Employee Relations has an affirmative responsibility to advise state employees
as to the effect of sticker/write-in ballots.
5. Did the Office of State Employee Relations improperly and discrimina-
torily apply guidelines pertaining to the posting of labor organization material
against the Maine State Employees Association?
The "guidelines" in dispute were promulgated by the Office of State Employee
Relations in October, 1974. As stated in the guidelines, the objective was "to
promote the improvement of the relationship between the State of Maine and its
employees by providing a uniform basis for recognizing the right of state employ
ees to join labor organizations of their own choosing and to be represented by
such organizations in collective bargaining for terms and conditions of employ
ment." 26 M.R.S.A. 979. .
The guidelines stated the following with respect to the use of bulletin
boards:
"Purely informational materials issued by employee organizations
for posting may be displayed in bulletin board space only, and
should be approved in advance by the agency concerned. Such
materials may not be hung upon, posted or otherwise affixed to
walls, doors, windows or elsewhere on facilities and buildings
owned or operated by the State." (OSER-5 dated October 23, 1974)
We do not find such a provision a per se violation of the State Employees
Labor Relations Act.
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The evidence did not indicate the guideline was improper under the State Employ-
ees Labor Relations Act or that it was applied discriminatorily against the Maine
State Employees Association. We conclude that the Office of State Employee Re-
lations did not improperly or discriminatorily apply the guideline pertaining to
the posting of labor organization material against the Maine State Employees
Association.
6. Were the inaccuracies in addresses in the mailing list and the employer's
failure to correct the inaccuracies grounds for setting aside the election or evi-
dence of unlawful conduct by the Office of State Employee Relations?
The address list supplied by the Office of State Employee Relations contained
1,271 names and addresses. Using the figure contained in Paragraph #13 above, the
error in addresses ranges between 2.4 percent and 3.5 percent inaccuracies. If the
rate is calculated by using the number of incorrect addresses of names appearing
on the list, then the rate of error is 3.5 percent. If the rate of error is cal-
culated by using the number of incorrect addresses for eligible employees, then the
rate is 3.1 percent. If the rate is calculated by using the number of incorrect
addresses for eligible employees which were not corrected by the call-in procedure,
then the rate is 2.11 perdent. Whichever means is used, we believe the percentage
of error in addresses is not unreasonably large for a mailing list such as this.
Our opinion is based on the statistics from New York State, where a February,
1977, mailing of 1800 ballots resulted in 125 returned as undeliverable (6.9
percent returned) and Massachusetts where an initial state-wide election of
50,000 ballots resulted in 4,000 returned as undeliverable (8.0 percent returned).
We have no reason to disbelieve the employer's contention that, at the time the
address inaccuracies became known, it was not possible to correct them in time to
send replacement ballots. Also, a procedure to correct any inaccuracies in the
addresses was available through the toll-free call-in procedure for employees to
receive a replacement ballot. In the future, we encourage any organization that
has knowledge of inaccuracies to present the inaccuracies to the employer to
allow him to make corrections or to rely on the toll-free call-in procedure.
ORDER
Based on the foregoing findings of fact and by virtue of and pursuant to the
powers granted to the Maine Labor Relations Board by the provisions of Section
979-G and Section 979-H of the State Employees Labor Relations Act, it is ORDERED:
1. That the prohibited practice complaint of the Maine State Employees
Association dated May 6, 1977 and filed with the Maine Labor Relations on May 6,
1977, be DISMISSED.
2. That the objection to the election of the Maine State Employees Associa-
tion, dated May 5, 1977, and filed with the Maine Labor Relations Board on May 5,
1977, be DISMISSED.
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3. That the decisions of the Executive Director of the Maine Labor
Relations Board with regard to the conduct of the Institutional Services
bargaining unit election are hereby affirmed, and the Certification of
Council #74, American Federation of State, County and Municipal Employees,
AFL-CIO, issued on May 3, 1977, is hereby AFFIRMED.
Dated at Augusta, Maine, this 9th day of August, 1977.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Walter E. Corey, Chairman
/s/________________________________________
Kenneth T. Winters, Employer Representative
/s/________________________________________
Michael Schoonjans, Employee Representative
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