STATE OF MAINE                                        MAINE LABOR RELATIONS BOARD
                    
________________________________________            
                                        )
COUNCIL 74, AMERICAN FEDERATION OF      )
STATE, COUNTY AND MUNICIPAL EMPLOYEES,  )
AFL-CIO, of Augusta, County of Kennebec )
and State of Maine                      )
                                        )
                            Complainant )
  v.                                    )
                                        )
STATE OF MAINE, by and through its      )             DECISION AND ORDER
employees and agents                    )
                                        )                      ON
                            Respondent  )
                                        )    PROHIBITED PRACTICE COMPLAINT 78-01
MAINE STATE EMPLOYEES ASSOCIATION       )
                                        )                      AND
                            Intervenor  )
                                        )   LETTERS OF OBJECTION TO THE ELECTIONS
TEAMSTERS LOCAL UNION NO. 48            )
                                        )              CONDUCTED IN THE
                            Intervenor  )
                                        )   OPERATIONS, MAINTENANCE AND SUPPORT
________________________________________)         
                                        )               SERVICES UNIT
COUNCIL 74, AMERICAN FEDERATION OF      )
STATE, COUNTY AND MUNICIPAL EMPLOYEES   )                  AND THE
AFL-CIO,                                )
                                        ) PROFESSIONAL AND TECHNICAL SERVICES UNIT
  and                                   )
                                        )
STATE OF MAINE, OFFICE OF STATE         )
EMPLOYEE RELATIONS,                     )
                                        )
  and                                   )
                                        )
MAINE STATE EMPLOYEES ASSOCIATION       )
                                        )
  and                                   )
                                        )
TEAMSTERS LOCAL UNION NO. 48            )
________________________________________)            
            
            
     This case comes to the Maine Labor Relations Board by way of a Prohibited Practice
Complaint dated July 6, 1977 and filed by Charles W. Sherburne, Executive Director,
Council No. 74, American Federation of State, County and Municipal Employees, AFL-CIO,
on July 6, 1977, and by two letters objecting to the conduct of the elections in the
Operations, Maintenance and Support Services Unit and the Professional and Technical
Services Unit dated July 6, 1977 and July 13, 1977 and filed by Charles W. Sherburne,
Executive Director, Council 74, American Federation of State, County and Municipal
Employees, AFL-CIO, on July 6, 1977 and July 14, 1977, respectively.  An Amended Pro-
hibited Practice Complaint was dated July 14, 1977 and filed by Charles W. Sherburne
On July 14, 1977, A Response to the Amended Complaint was dated July 28, 1977, and
filed by John J. Sears, Esquire, Counsel for the State of Maine, Office of State Em-
ployee Relations on July 28, 1977.

            
                                        [-1-]
_______________________________________________________________________________________            
            
     A hearing was held on the Prohibited Practice Complaint and the Objections to            
the Elections on Tuesday, August 2, 1977, and Monday, August 8, 1977, Chairman Walter
E. Corey presiding with Michael Schoonjans, Employee Representative and Robert D.
Curley, Employer Representative.  On August 8, 1977, Motions to Intervene in the Pro-
hibited Practice Complaint proceeding were made by John J. Finn, Esquire, in behalf
of the Maine State Employees Association and Jonathan Axelrod, Esquire, in behalf of
Teamsters Local Union No. 48 and granted by the Board.  After filing of memoranda of
law by the parties, the Maine Labor Relations Board proceeded to deliberate on this
matter on September 30, 1977.
            
            
                                     JURISDICTION
        
     The parties have not challenged the jurisdiction of the Maine Labor Relations
Board, and we conclude that the Board has jurisdiction to hear and render a decision
in this matter pursuant to 26 M.R.S.A.,  968,  979-G and  979-H.
            
            
                                   FINDINGS OF FACT
            
     Upon review of the testimony given at the hearing as well as the pleadings and
records of the Maine Labor Relations Board, we find:
            
          1)  By letter dated April 29, 1977, the Maine Labor Relations Board
              (hereinafter referred to as the "Board") notified the Maine
              State Employees Association (MSEA), Council 74, American Federa-
              tion of State, County and Municipal Employees, AFL-CIO, (Council
              74), Local #48, International Brotherhood of Teamsters, Chauf-
              feurs, Warehousemen and Helpers of America (Teamsters Local 48)
              and the State of Maine, Office of State Employee Relations
              (OSER) that showings of interest had been received by the Board
              for an election in the Operations, Maintenance and Support Ser-
              vices Unit (OMS Unit) and the Professional and Technical Services
              Unit (P&T Unit).  The showings of interest were sufficient in the
              OMS Unit for MSEA to appear on the election ballot as petitioner
              and for Council 74 and Teamsters Local 48 to appear as intervenors.
              The showings of interest were sufficient in the P&T Unit for MSEA
              to appear on the election ballot as petitioner and for Council 74
              to appear as intervenor.
            
          2)  A pre-election conference was held on Thursday, May 5, 1977, with
              representatives of the Board, MSEA, Council 74, OSER and Teamsters
              Local 48 in attendance.  As a result of that conference, several
              arrangements were established for the conduct of the OMS Unit and
              P&T Unit elections, including the following:
            
                a)  The parties agreed that the envelopes, ballots, notices
                    and letters of instruction used in the recent Adminis-
                    trative and Institutional Unit elections were acceptable
                    and the same general format would be used in the elections
                    for the OMS Unit and P&T Unit.
           
                b)  In accordance with the agreed format, second ballots would
                    be mailed in the event a person believing himself to be a
                    duly qualified voter calls for a ballot, alleging that he
                    had not received one.  The same procedure would be used for
                    those persons who believe themselves to be eligible voters
                    whose names do not appear on the voting list.  This was the
                    same procedure that was followed in the Administrative and
                    Institutional unit balloting.

                                         -2-
_______________________________________________________________________________________
            
                c)  Voting lists would be made available to the MLRB and the
                    parties by OSER on or before May 26, 1977, and in accordance
                    with statute.
            
                d)  It was established that the mail balloting procedures for
                    both units should be conducted concurrently and that the
                    mailing date of the ballots for both units would be June 8,
                    1977.
            
                e)  Election notices would be mailed to the parties on or before
                    May 24, 1977, and would be posted on or before May 29, 1977.
            
                f)  The period for employees to request duplicate ballots would be
                    from June 13, 1977 to June 20, 1977.
            
                g)  The cut-off date for receipt of ballots would be 9:00 a.m. on
                    Wednesday, June 29, 1977, at which time the duly authorized
                    representative would pick up the ballots for both units at the
                    Augusta Post Office.  To the extent possible, the ballots for
                    the OMS Unit would be counted and tabulated on June 29, 1977.
                    To the extent possible, the ballots for the P&T Unit would be
                    counted and tabulated on June 30, 1977.
            
                h)  The Board would retain its WATS line with the number 800-452-1974
                    during the course of the elections.
            
         3)  The notice of bargaining agent election printed by the MLRB and distributed
             to the parties and to OSER for posting at work locations where notices were
             normally posted for the benefit of employees contained, inter alia, the
             following provisions:
            
                Any employee believing himself eligible to vote in this election who
                has not received a ballot on or before June 13, 1977, may obtain a
                duplicate ballot by calling 1-800-452-1974 on or before June 20, 1977,
                identifying himself, and stating the reason for his request.  All ballots
                to be counted in this election must be received by the Maine Labor
                Relations Board in the postage paid mail ballot envelope provided with
                the ballot at the address posted thereon on or before 9:00 a.m. June 29,
                1977 . . . .
            
                The voter must sign the "Mail Envelope" in the appropriate space.  Failure
                to do so may invalidate the ballot.  The mail envelope will be used to
                authenticate voter eligibility but will be discarded prior to counting to
                insure voter anonymity.
            
                A draft copy of the notice of bargaining agent election for the OMS Unit
                election containing the above-quoted provisions was mailed by the Board
                on May 23, 1977, to MSEA, Council 74, Teamsters Local 48 and OSER by cer-
                tified mail, return receipt requested, and the return receipts were in
                fact signed and returned to the Board.
            
                A draft copy of the notice for bargaining agent election for the P&T Unit
                election containing the above-quoted provisions was mailed by the Board on
                May 23, 1977, to MSEA, Council 74 and OSER by certified mail, return re-
                ceipt requested, and the return receipts were in fact signed and returned
                to the Board.
            
         4)  On May 26, 1977, in conformance with the May 5, 1977 agreements, OSER made
             available to the MLRB and the parties a list of eligible voters.
            
         5)  The list of eligible voters was inaccurate probably due to an error either in
             the preparation or the handling of a computer card and approximately 71 names
             and addresses of eligible voters were not included in the eligibility list of
             1961 names and addresses for the OMS Unit.  Approximately 32 mail ballot en-
             velopes were returned to the Board as undeliverable out of 1,961 mailed in the
             OMS Unit election.  Approximately 41 mail ballot envelopes were returned to the
             Board as undeliverable out of 3,171 mailed in the P&T Unit election.

                                         -3-
_______________________________________________________________________________________

         6)  On June 29, 1977, a representative of the Board took delivery of
             approximately 2,784 mail ballot envelopes held by the United States
             Post Office in Augusta, Maine, deliverable by business reply mail to
             the Maine Labor Relations Board.  The ballots for the OMS Unit elec-
             tion were segregated and counted on June 29, 1977, and the Executive
             Director of the Board issued the following election report and certi-
             fication:
            
            
                                      ELECTION REPORT
            
             Members of the Unit and eligible to vote                     1961
            
             Ballots cast                                                 1107

             Ballots for the proposition that Maine State Employees As-
             sociation SHALL REPRESENT the Operations, Maintenance and     420
             Support Services bargaining unit as their bargaining agent

             Ballots for the proposition that Council #74, American Fed-
             eration of State, County & Municipal Employees, AFL-CIO,
             SHALL REPRESENT the Operations, Maintenance and Support       262
             Services bargaining unit as their bargaining agent
            
             Ballots for the proposition that Teamsters Local Union #48
             SHALL REPRESENT the Operations, Maintenance and Support
             Services bargaining unit as their bargaining agent            343

             Ballots for the proposition of NO REPRESENTATION               11

             Ballots with no alternative indicated                           0
                                                      
             Ballots spoiled and not counted                                 1
            
             Bal lots challenged and set aside under the provisions of      
             Rule 3.06 of the Election Rules                                70
            
            
            
                                   ATTEST:/s/ Parker A. Denaco________________
                                          Parker A. Denaco, Executive Director
                                          Maine Labor Relations Board
            
            
WITNESS:
                  For Council #74,
For Maine State   American Federation of State,  For Teamsters Local
Employees         County & Municipal Employees       Union
Association       AFL-CIO                             #48             For State of Maine

/s/John J.Finn    /s/ Kenneth A. Walo            /s/ Richard Peluso   /s/John J. Sears
            
            
                               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 June 8, 1977, to June 29, 1977, for the
Operations, Maintenance and Support Services bargaining unit of the State of Maine (that
NO BARGAINING AGENT was elected and a runoff election is required).

Dated at Augusta, Maine this 29th day of June, 1977.
            
            
                                               By:/s/ Parker A. Denaco________________
                                                  Parker A. Denaco, Executive Director
                                                  Maine Labor Relations Board

                                         -4-
_______________________________________________________________________________________

     The ballots for the P&T Unit election were segregated on June 29, 1977, and            
counted on June 30, 1977, and the Executive Director of the Board issued the follow-
ing election report and certification:
            
            
                                 ELECTION REPORT

      Members of the Unit and eligible to vote                    3177

      Ballots cast                                                1677
            
      Ballots for the proposition that Maine State Employees
      Association SHALL REPRESENT the Professional and Technical  1040
      Services bargaining unit as their bargaining agent
            
      Ballots for the proposition that Council #74, American
      Federation of State, County & Municipal Employees, AFL-CIO,  423
      SHALL REPRESENT the Professional and Technical Services
      bargaining unit as their bargaining agent

      Ballots for the proposition of NO REPRESENTATION              71

      Ballots with no alternative indicated                          2

      Ballots spoiled and not counted                                0
            
      Ballots challenged and set aside under the provisions
      of Rule 3.06 of the Election Rules                           141
            
            
                                    ATTEST:/s/ Parker A. Denaco________________
                                           Parker A. Denaco, Executive Director
                                           Maine Labor Relations Board
            
            
WITNESS:
                                For Council #74, American
     For Maine State Employees  Federation of State, County
            Association         & Municipal Employees, AFL-CIO   For State of Maine

     /s/ John J. Finn           /s/ Kenneth A. Walo              /s/ Jack Sears


                          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 June 8, 1977 to June 29,
1977, for the Professional and Technical Services bargaining unit of the State of Maine
(that Maine State Employees Association SHALL REPRESENT the aforesaid unit as the duly
certified bargaining agent).
            
Dated at Augusta, Maine, this 30th day of June, 1977.
            
            
                                              By:/s/ Parker A. Denaco________________
                                                 Parker A. Denaco, Executive Director
                                                 Maine Labor Relations Board
            
            
     7)  As the result of an investigation by the Board of the Post Office procedures
         for handling business reply mail addressed to the Maine Labor Relations
         Board, on July 7, 1977, approximately 1009 mail ballot envelopes for the OMS
         Unit and the P&T Unit elections were discovered and secured in a post office
         vault.  The newly discovered mail ballot envelopes had been received by the
         post office prior to the 9:00 a.m. June 29, 1977 deadline, but the postal
         service officials neglected to deliver these ballots to the representative
         of the Board on the June 29, 1977 delivery date.

                                         -5-
_______________________________________________________________________________________

     8)  As a result of the newly discovered mail ballot envelopes, the
         Board conducted a counting of the newly-found ballots on June 12,
         1977.  The following is the election report and certification for
         the OMS Unit election dated July 12, 1977:


                                                 Original    Supplemental
             ELECTION REPORT                    Tabulation    Tabulation     Total
                                             June 29, 1977  July 12, 1977  Tabulation

Members of the Unit and eligible to vote           1,961         1,961       1,961

Ballots cast                                       1,107           379       1,486
            
Ballots for the proposition that Maine State
Employees Association SHALL REPRESENT the Opera-
tions, Maintenance & Support Services bargaining     420           138         558
unit as their bargaining agent
            
Ballots for the proposition that Council #714,
American Federation of State, County & Municipal
Employees, AFL-CIO, SHALL REPRESENT the Operations,  262           104         366
Maintenance & Support Services bargaining unit as
their bargaining agent
            
Ballots for the proposition that Teamsters Local
Union #48 SHALL REPRESENT the Operations, Mainte-
nance & Support Services bargaining unit as their    343           119         462
bargaining agent

Ballots for the proposition of NO REPRESENTATION      11             2          13

Ballots with no alternative indicated                  0             0           0

Ballots spoiled and not counted                        1             0           1
            
Ballots challenged and set aside under the provi-
sions of Rule 3.06 of the Election Rules              70            16          86
            
            
                                      ATTEST: /s/ Parker A. Denaco________________
                                              Parker A. Denaco, Executive Director
                                              Maine Labor Relations Board
            
            
WITNESS:
                           For Council #74, American
For Maine State Employees  Federation of State, County
Association                & Municipal Employees,      For Teamsters Local
                           AFL-CIO                     Union #48           For State of Maine

/s/ John J. Finn           /s/Charles W. Sherburne     /s/Richard Peluso   /s/ John J. Sears
            
            
                   S U P P L E M E N T A L  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 June 8, 1977, to June 29, 1977, for the Operations,
Maintenance and Support Services bargaining unit of the State of Maine (that NO BARGAINING
AGENT was elected and a runoff election is required).
            
Dated at Augusta, Maine, this 12th day of July, 1977.
            


                                                  By: /s/ Parker A. Denaco________________
                                                      Parker A. Denaco, Executive Director
                                                      Maine Labor Relations Board

                                         -6-
_______________________________________________________________________________________

           
            
          The following is the election report and certification for the
          P&T Unit election dated July 12, 1977:

                                            Original     Supplemental
                ELECTION REPORT            Tabulation     Tabulation      Total
                                           June 30, 1977 July 12, 1977  TabulatIon

Members of the Unit and eligible to vote       3,171         3,171         3,171

Ballots cast                                   1,677           637         2,314
            
Ballots for the proposition that Maine State
Employees Association SHALL REPRESENT the
Professional & Technical Services bargaining   1,040           395         1,435
unit as their bargaining agent
            
Ballots for the proposition that Council #74,
American Federation of State, County & Munici-
pal Employees, AFL-CIO, SHALL REPRESENT the      423           182           605
Professional & Technical Services bargaining
unit as their bargaining agent

Ballots for the proposition of NO REPRESENTATION  71            36           107

Ballots with no alternative indicated              2             1             3

Ballots spoiled and not counted                    0             1             1
            
Ballots challenged and set aside under the
provisions of Rule 3.06 of the Election          141            22           163
Rules
            

                                   ATTEST: /s/ Parker A. Denaco_______________
                                           Parker A. Denaco, Executive Director
                                           Maine Labor Relations Board
            
            
WITNESS:
                           For Council #74, American
For Maine State Employees  Federation of State, County
    Association            & Municipal Employees, AFL-CIO  For State of Maine

/s/John J. Finn            /s/Kenneth A. Walo              /s/John J. Sears
            
            
                  S U P P L E M E N T A L  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 June 8, 1977, to June 29, 1977, for the
Professional and Technical Services bargaining unit of the State of Maine (that Maine
State Employees Association SHALL REPRESENT the aforesaid unit as the duly certified
bargaining agent).
            
            
Dated at Augusta, Maine, this 12th day of July, 1977.
            
            
                                          By: /s/ Parker A. Denaco________________
                                              Parker A. Denaco, Executive Director
                                              Maine Labor Relations Board
            
            
          9)  On June 2, 1977, the Executive Director of the Board, respond-
              ing to an inquiry from OSER, certified that was the only peti-
              tioner for an election in the Law Enforcement Services bargain-
              ing unit and that MSEA's showing of interest exceeded 53%.

                                         -7-
_______________________________________________________________________________________

         10)  On June 9, 1977, the first day after the mailing of ballots in
              the OMS Unit and P&T Unit elections, the State of Maine, through
              OSER, voluntarily recognized MSEA as the bargaining agent for the Law
              Enforcement Services bargaining unit.  On or about June 9, 1977, OSER and
              MSEA issued a joint news release stating that the State of Maine had
              recognized MSEA as the bargaining agent for employees in the Law
              Enforcement Services bargaining unit which was published in several
              newspapers in the State of Maine during the time of the elections
              in the OMS Unit and P&T Unit.
            
            
                                       DECISION
            
     The prohibited practice complaint filed by Charles Sherburne on July 6, 1977,
as amended on July 14, 1977, charged the State of Maine with disenfranchising
eligible voters and interfering with a free and fair election in violation of 26
M.R.S.A.  979-C(1)(A and B).  The basis for the charge was the alleged tardiness
and inaccuracy in the list of eligible voters and the voluntary recognition of
MSEA as the bargaining agent for the Law Enforcement Services bargaining unit during
the election for a bargaining agent in the OMS Unit and the P&T Unit.  The Objections
to the Election filed by Charles Sherburne on July 6, 1977, challenged the conduct
of the OMS Unit election on the following grounds:
            
     1)  The procedure employed by the Board effectively disenfranchised
         enough voters to effect the outcome of the election because:
            
         a)  Ballots of voters who voted and placed their ballots
             in the United States mail pursuant to Board procedure
             and in a timely fashion were not counted by the Execu-
             tive Director and/or the Board.
            
         b)  The Executive Director and/or the Board failed to as-
             certain the accuracy of the voting list supplied by the
             State to the Executive Director and/or the Board and said
             list excludes approximately 50 eligible voters who are
             members of AFSCME and who were employed by the State in
             positions within the operation, support and maintenance
             unit on December 29, 1976 and who remained on the State
             payroll as of the date of the election and, upon informa-
             tion and belief, said list is minimally inaccurate by 10
             percent.
            
         c)  The Executive Director and/or the Board failed to count
             authentic ballots.
            
     2)  The Executive Director and/or the Board applied rules which were
         promulgated in violation of 26 M.R.S.A.  979-G(1) and  968(3).
            
     The Objections to the Election filed by Charles Sherburne on July 14, 1977,
challenged the conduct of the OMS Unit election and the P&T Unit election on the
following grounds:
            
     1)  The procedure employed by the Board effectively disenfranchised
         enough voters to effect the outcome of the election because:
            
         a)  Ballots of voters who voted and placed their ballots in
             the United States mail pursuant to Board procedure and
             in a timely fashion were not properly counted by the
             Executive Director and/or the Board.

         b)  The Executive Director and/or the Board failed to ascer-
             tain the accuracy of the voting lists supplied by the
             State to the Executive Director and/or the Board and said

                                         -8-
_______________________________________________________________________________________

             list of the employees within the Operation, Maintenance
             and Support Services unit exclude approximately 50 elig-
             ible voters who are members of AFSCME and who were employed
             by the State in positions within the Operation, Maintenance
             and Support Services unit on December 29, 1976 and who re-
             mained on the State payroll as of the date of the election
             and, upon information and belief, both lists are minimally
             inaccurate by 10 per cent.
            
         c)  The Executive Director and/or the Board failed to count au-
             thentic ballots.
            
     2)  The Executive Director and/or the Board applied rules which were promul-
         gated in violation of 26 M.R.S.A.  979-G(1) and  968(3).
            
     3)  The Executive Director and/or the Board arbitrarily decided to count
         approximately 379 challenged ballots in the OMS unit, while failing to
         count an additional 84 challenged ballots in the same unit.
           
     4)  The Executive Director and/or the Board counted challenged ballots re-
         ceived by then, after 9:00 A.M. on June 29, 1977, the predetermined cut-
         off date for the election.
            
     5)  The Executive Director and/or the Board failed to send out ballots to
         eligible voters who, upon information and belief, the Executive Director
         and/or the Board now know to be eligible voters who were not previously
         contained on the voting list furnished by the State of Maine, said addi-
         tional voters in combination with the challenged ballots being a suffic-
         ient number to affect the outcome of the election.
            
     The first issue is that of the tardiness of the voter eligibility list.  As
noted in the Findings of Fact, the ballots were mailed from the Board on June 8,
1977.  At the pre-election conference conducted on May 5, 1977, all the parties to
both elections agreed that the voter eligibility lists would be available on or be-
fore May 26, 1977.  The Complainant agreed to a May 26, 1977, availability date and
did not object to the date until after the counting of the ballots.  By agreeing to
the eligibility list availability date, Council 74 has waived any right to object to
the date, and by not raising the issue of an untimely voter eligibility list prior
to the election, Council 74 is estopped from raising the issue after the conducting
of the election.
            
     The second issue is that of inaccuracies in the voter eligibility list.  As
noted in the Findings of Fact, 71 of 1,961 names were omitted from the OMS Unit
voting list.  Approximately 32 of the 1,961 names on the OMS Unit list had incorrect
addresses and approximately 41 of the 3,171 names on the P&T Unit list had incorrect
addresses.  An error rate of 3.5% of omissions and 1.3 to l.6% of address inaccuracies
in the voter eligibility list is not substantial and should not be the basis for set-
ting aside an election unless it is clearly shown that the error was either intentional
or due to the gross negligence of the employer.  The evidence does not support a find-
ing of either intentional error or gross negligence and is not sufficient to be a
violation of 26 M.R.S.A.  979-C or the basis for setting aside an election.  Addition-
ally, the Board established a toll free call-in procedure for state employees to re-
quest a ballot.  Prior to the deadline for employees to request a ballot, the partici-
pating labor organizations, OSER and the MLRB met to discuss means of correcting ad-
dress errors and the Complainant opposed any effort to correct address errors other
than by means of the previously agreed upon toll free call-in procedure.

                                         -9-
_______________________________________________________________________________________            
            
     The third issue is that of the voluntary recognition by the State of Maine
of MSEA as the bargaining agent for the Law Enforcement bargaining unit during the
election in the OMS Unit and P&T Unit.  The Complainant has failed to offer any
evidence that the voluntary recognition by the employer of one labor organization
in a bargaining unit has an adverse effect upon the competing organization in an-
other bargaining unit.  It is equally as likely that voluntary recognition of one
organization in one bargaining unit could have a beneficial effect on the competing
organization in another bargaining unit.  Additionally, the evidence proved that
the voluntary recognition was made in the normal course of business.  It was not
timed to coincide with the other elections and was not intended to have an adverse
impact either way on other pending elections.  The voluntary recognition was made
after factual inquiries to the Board to determine the adequacy of the showing of interest
and was intended to be consistent with and promote the purposes of the State Employees
Labor Relations Act.  We conclude that the voluntary recognition does not violate 26
M.R.S.A.  979-C and is not sufficient to warrant setting aside an election.
           
     The fourth issue is that some ballots were not properly counted by the Executive
Director or the Board.  Having reviewed the testimony, pleadings and record, we find
no evidence to support the allegation that some ballots were not properly counted by
either the Executive Director or the Board, and we counted all ballots received in
accordance with the pre-election memorandum.
            
     The fifth issue is that the Executive Director or the Board failed to ascertain
the accuracy of the voting list.  Firstly, there is no affirmative obligation on the
Executive Director or the Board to ascertain the accuracy of the voting list.  Prior
to an election, the labor organization should ascertain the accuracy of the list and
attempt to correct any errors.  The State Employees Labor Relations Act and the Rules
and Procedures of the Maine Labor Relations Board provide a structure for resolving
disputes over the voting list, and the Executive Director and the Board followed those
procedures in this case.  Secondly, two additional procedures were available in the
mail ballot process, including the meetings with parties to correct the list and the
toll free call-in procedure.
            
     The sixth issue is the alleged failure to count authentic ballots.  The Executive
Director counted all ballots received in accordance with the pre-election memorandum,
the Rules and Procedures of the Maine Labor Relations Board and the State Employees
Labor Relations Act and, therefore, the Board believes this allegation to be with-
out foundation.
            
     The seventh issue is the application of rules and procedures allegedly improperly
promulgated by the Board.  The evidence at the hearing indicated that Complainant be-
lieved the portion of Rule 3.05(c) concerning additional instructions or additional
identifying marks on a mail ballot envelope were improperly promulgated.  The records
of the Board indicated that the language complained of was added to Rule 3.05(c) after
a public hearing held on September 18, 1975.  The public was given notice of the hear-
ing through the newspapers and the Complainant was given actual notice and, in fact,

                                         -10-
_______________________________________________________________________________________            
            
attended the public hearing.  Copies of the proposed revisions were available to the
public and a copy was mailed to all interested organizations, all in compliance with
the provisions in Title 26.  Consequently, we find Council 74's allegations of im-
proper promulgation of rules is without merit.
            
     The eighth issue is that of the Board arbitrarily counting challenged
ballots in the OMS Unit.  The testimony on the challenges made during the July 12,
1977, counting for the OMS Unit was ambiguous but, even if we assumed that all OMS
ballots counted on July 12, 1977, were individually challenged, we overrule the
challenge since to do so would disenfranchise otherwise eligible state voters.
           
     The ninth issue is that of counting ballots delivered to the Board after 9:00
a.m. on June 29, 1977.  The Board counted all ballots received in accordance with the
pre-election memorandum.  Ballots tabulated on July 12, 1977, were duly received by
the U.S. Postal Service on or before June 29, 1977, and merely were not counted on
the June 29-30, 1977, tabulation date.
            
     The tenth issue was the Executive Director's or the Board's failure to send out
ballots to employees which the Board now knows to be eligible voters.  As stated
above, the error is statistically insignificant and absent a showing more voters
were excluded from the list, or that such exclusions resulted from an intentional act
to disenfranchise voters or to influence the outcome of the election, this is not a
basis for setting aside the election.  Also, as mentioned earlier, the Board provided
a toll free telephone line to remedy errors in the voter list.
           
            
                                        ORDER
            
     On the basis of the foregoing Findings of Fact and by virtue of and pursuant to
the powers granted to the Maine Labor Relations Board by the State Employees Labor
Relations Act, it is hereby ORDERED:
            
     1)  That the prohibited practice complaint filed by Charles Sherburne,
         Executive Director, Council 74, American Federation of State, County
         and Municipal Employees, AFL-CIO, on July 6, 1977, as amended on July
         14, 1977, be DISMISSED.
            
     2)  That the Objections to the Elections filed by Charles Sherburne, Ex-
         ecutive Director, Council 74, American Federation of State, County
         and Municipal Employees, AFL-CIO, on July 6, 1977 and July 14, 1977,
         be DISMISSED.
            
     3)  That the Certification of the Maine State Employees Association as the
         bargaining agent for the Professional and Technical Services bargaining
         unit issued on July 12, 1977, be AFFIRMED.
         
     4)  That the Certification that no bargaining agent was elected in the
         Operations, Maintenance and Support Services Unit and a run-off
         election was required issued on July 12, 1977, be AFFIRMED.

                                         -11-
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     5)  That the Executive Director proceed forthwith with a run-off election
         in the Operations, Maintenance and Support Services Unit as pro-
         vided in the State Employees Labor Relations Act and Rule 3.09 of the
         Rules and Procedures of the Maine Labor Relations Board.
            
Dated at Augusta, Maine this 31st day of October, 1977.
            
                                           MAINE LABOR RELATIONS BOARD
            
                                 
            
                                           /s/________________________________________
                                           Walter E. Corey, Chairman
            
            
            
                                           /s/________________________________________
                                           Robert D. Curley, Employer Representative
            
            
            
                                           /s/________________________________________
                                           Michael Schoonjans, Employee Representative
            
                                         -12-
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