STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 81-47 Issued: November 16, 1981 _________________________________________ ) BIDDEFORD SUPPORT STAFF ASSOCIATION, ) ) Complainant ) ) v. ) ) BIDDEFORD SCHOOL COMMITTEE ) ) and ) DECISION AND ORDER ) RALPH VALLIERE, School Bus Dispatcher, ) CITY OF BIDDEFORD ) ) and ) ) ROBERT HODGE, Assistant Superintendent ) of Schools, CITY OF BIDDEFORD ) ) Respondent ) _________________________________________) On March 11, 1981, the Biddeford Support Staff Association ("Union") filed a prohibited practices complaint against the Biddeford School Committee, Ralph Valliere, the School Bus Dispatcher for the City of Biddeford, and Robert Hodge, Assistant Superintendent of Schools for the City of Biddeford (all "Employer"), alleging that the School Committee and its agents or supervisory employees, for whose actions it is vicariously liable, violated Title 26 M.R.S.A. 964(1)(A) and (C) by effectively disenfranchising eligible voters and by interfering with a free and fair election. The Employer filed an answer to the Complaint denying that it had violated any provisions of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. 961, et seg., and moving to dismiss the said complaint on the grounds of improper service of process and that the complaint's allegations constitute de minimus violations of the Act, at best, and did not affect the outcome of the election. The parties jointly waived pre-hearing conference and, in lieu of a Pre- Hearing Conference Memorandum and Order, the parties filed a stipulated Pre- Hearing Memorandum on April 30, 1981. The parties agreed to further relevant facts through a Post- -1- ______________________________________________________________________________ Hearing Stipulation, filed on August 6, 1981, and through Stipulations, filed on September 24, 1981. The contents of said Pre-Hearing Memorandum, Post- Hearing Stipulation, and Stipulations are incorporated herein by reference. A briefing schedule was established and both parties have filed appropriate briefs, which have been considered by the Board. JURISDICTION The Biddeford Support Staff Association is a public employee organiza- tion, within the meaning of 26 M.R.S.A. 968(5)(B) and the Biddeford School Committee, Ralph Valliere, in his position as the School Bus Dispatcher for the City of Biddeford, and Robert Hodge, in his position as the Assistant Superintendent of Schools for the City of Biddeford, are all public employers, as defined in 26 M.R.S.A. 962(F). Neither party has challenged the juris- diction of the Maine Labor Relations Board ("Board") in this case, and we conclude that the Board has jurisdiction to hear and render a decision in this case as provided in 26 M.R.S.A. 968(5) or pursuant to 26 M.R.S.A. 968(4). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. At all times relevant hereto, the Complainant Biddeford Support Staff Association (Union), an affiliate of the Maine Teachers Association, was and is now a public employee organization, within the meaning of Title 26 M.R.S.A. 968(5)(B). 2. At all times relevant hereto, Respondent Biddeford School Committee (Employer) was and is now the duly authorized and elected superintending school committee of the City of Biddeford and is a public employer, as defined in 26 M.R.S.A. 962(7). 3. At all times relevant hereto, Respondent Ralph Valliere was and is now the School Bus Dispatcher employed by the Biddeford School Committee. 4. At all times relevant hereto, Respondent Robert Hodge was and is now the Assistant Superintendent of schools for the City of Biddeford employed by the Biddeford School Committee. -2- ______________________________________________________________________________ 5. Respondent Ralph Valliere has direct day-to-day supervisory authority over the school bus drivers of the City of Biddeford School Department and that Respondent Robert Hodge has direct and indirect supervisory authority over the aforesaid school bus drivers, but exercises day-to-day supervision only in the absence of Respondent Ralph Valliere. 6. On March 6, 1981, a bargaining agent election was held in the Superintendent's Conference Room at Biddeford High School, Maplewood Avenue, Biddeford, Maine. 7. The polls for the aforesaid election were open from 2:45 p.m. to 3:30 p.m. (EST). 8. That Russell Lavoie, a school bus driver, was eligible to vote in the bargaining agent election. 9. On March 6, 1981 at approximately 3:20 p.m., Lavoie entered the bus dispatcher's office across the street from the polling place. Respondent Valliere told Lavoie that he, Lavoie, could not vote in the election and added "they won't even let you in the building." 10. Present, when the statements mentioned in paragraph 9 hereof were made, were Rita Lauzier, Lucille Poulin, Peter Harmon and Paul Metayer. 11. The Board pursuant to the authority of 5 M.R.S.A. Section 9058 and having complied with the procedure mandated therein, takes official notice of the following information, contained in the Board's files: of those persons present, when the statement mentioned in paragraph 9 hereof was made; a review of the Board's records indicates that Rita Lauzier and Lucille Poulin voted in the election and Peter Harmon, who had been an employee of the Employer for less than 6 months on the date of the election, was ineligible to vote. 12. None of the employees, who overheard the conversation between Valliere and Lavoie, told anyone else about said conversation, during the course of the representation election. 13. The Board, pursuant to the authority of 5 M.R.S.A. Section 9058 and having complied with the procedure mandated herein, takes official notice of the following information, contained in the Board's files: Paul Metayer had the same voting status as Lavoie, in that both were hired on the same date and both became eligible to vote at the same time. -3- ______________________________________________________________________________ 14. The Board, pursuant to the authority of 5 M.R.S.A. Section 9058 and having complied with the procedure mandated herein, takes official notice of the following information, contained in the Board's files: Paul Metayer did not vote in the bargaining agent election. 15. That, subsequent to the statements mentioned in paragraph 9 hereof, Lavoie left the dispatcher's office and started across the street to the polling place. 16. That, as Lavoie crossed the street, he met respondent Hodge. Hodge told Lavoie that he, Lavoie, hadn't been employed long enough and could not vote. 17. The conversation between Hodge and Lavoie, mentioned in paragraph 15 hereof, was not overheard by anyone. 18. That Lavoie, who had been on his way to vote when Valliere and Hodge spoke to him, did not vote. 19. Russell Lavoie did not communicate with anyone else, before the polls closed at 3:30 p.m. 20. That the disenfranchisement of employees Lavoie and Metayer, as a result of the statements of Employers Valliere and Hodge, was unintentional. Said Employer statements were made in the mistaken belief that Lavoie was still a probationary employee, however, he had become eligible to vote a few days before the date of the election. 21. On February 24, 1981, the addresses of the eligible voters were typed by an employee of the Biddeford School Department onto a copy of the voting list that had been prepared on January 5, 1981. The January 5th list excluded employees Lavoie and Metayer because, at the time the list was prepared, they were not public employees within the meaning of 26 M.R.S.A. 962(6), however, addresses were placed beside their names because they had become eligible voters. 22. The list was sent to the Biddeford Support Staff Association Representative, Richard Mersereau, and to the Maine Labor Relations Board. 23. The voting list was posted at the bus dispatcher's office. 24. The Complainant Union did not object either to the form or content of the list, at any time material hereto. 25. The final vote count resulted in no bargaining representative being selected; by a vote of 8 for no representative to 6 for the Biddeford Support Staff Association. -4- ______________________________________________________________________________ DECISION The Union's prohibited practices complaint is, in substance, an objection to the election of May 6, 1981 and it will be treated as such by the Board. Said complaint was timely filed, in conformity with the provisions of 26 M.R.S.A. 968(4) and with Rules 3.07 and 3.08 of the Board's Rules and Procedures. The parties, in their Pre-Hearing Memorandum, properly identified the issues at hand as being: (1) Did the Employer, acting through its servants Valliere and Hodge, violate 26 M.R.S.A. 963 and thereby commit a prohibited practice as defined in 26 M.R.S.A. 964(1)(A) and (C)?, (2) If the answer to question 1 is yes, is it significant that the election outcome would not have been affected, if Lavoie had voted? and (3) Was there proper service of the complaint upon the Respondent? One need not look beyond the pleadings to discover the response to the first question. The Union's complaint, paragraph 13, alleges: "That the actions of the Respondents as stated above (1) effectively disenfranchised eligible voters, (2) interfered with a free and fair election, and (3) violates 26 M.R.S.A. Section 963 and constitutes a Prohibited Practice as defined in Section 964, subsection 1, paragraphs A and C." The Respondent's answer admits that the Employer's conduct constitutes the alleged prohibited practices and interposes the second and third issues as affirmative defenses. Both parties, in their briefs, proceed to discuss the second issue and cite, as precedent, cases from the National Labor Relations Board ("N.L.R.B.") dealing with pre-election conduct. Complainant relies on Dal-Tex Optical Co., 137 N.L.R.B. 1782 (1962), a pre-election oratory case, and Respondent points us to Hollywood Ceramics Co., 140 N.L.R.B. 221 (1962), a pre-election leaf- letting case. Neither case is apposite in the present context, since the N.L.R.B. applies a different standard to evaluate allegedly prohibited conduct occurring during, as opposed to prior to, an election. More closely analogous to the present factual situation are the N.L.R.B. decisions in Milchem, Inc., 170 N.L.R.B. 362 (1968) and Monroe Manufacturing Co., 200 N.L.R.B. 62 (1972). Both said cases involve the same kind of employer interference and voter disenfranchisement now before us. The N.L.R.B., through obiter dicta in Milchem and Monroe, has stated that any employer interference or disenfranchisement of eligible voters in representation -5- ______________________________________________________________________________ elections obviates the laboratory conditions therein and results in the Board overturning the results of the election, however, in a recent case, Mechanical Seal Div., Borg-Warner Corp. and Rudolph Roberts, 254 N.L.R.B. No. 71, 106 LRRM 1122 (1/14/81), the N.L.R.B. has clarified its position in connection with such employer actions. In Borg-Warner, a case on all-fours with that now before us, the National Board stated as follows: "The Regional Director concluded that the Employer unintention- ally disenfranchised Hamblin and sustained the relevant portion of the Petitioner's objections. In so doing, he rejected the Employer's contention that its action toward Hamblin was unobjectionable because Hamblin's vote could not have affected the outcome of the election. Thus, the Regional Director stated, '. . . where an eligible voter is disenfranchised by the actions of a party to the proceedings, the election must be set aside.' In its exceptions, the Employer con- tends that the Board has only found the disenfranchisement of employees by a party to an election objectionable where the ballots of the disen- franchised employees would have been determinative (Yerges Van Liners, Inc., 162 N.L.R.B. 1259, 64 LRRM 1173 (1967)), or where unfair labor practices, not present here occurred (Marine Welding and Repair Works, Inc.; Williamson Engine and Supply, Inc.; Greenville Manufacturing and Machine Works, Inc.; Greenville Propeller Works, Inc., 174 NLRB 661, 70 LRRM 1329 (1969), enfd. 439 F.2d 395, 398, 76 LRRM 2660 (8th Cir. 1971). It argues that the alleged disenfranchisement of one employee whose vote could not have affected the election's results does not constitute sub- stantial interference with the free conduct of the election. We find merit in the Employer's contentions. The Regional Director's conclusion in the instant case is, in effect, the formulation of a per se rule regarding the disenfranchise- ment of voters. The Board has recently avoided establishing such a per se rule. In Jobbers Meat Packing Co., Inc., 252 NLRB No. 8, 105 LRRM 1182 (1980), the Board refused to set aside an election where a Board agent's delay in opening the polls disenfranchised an eligible voter whose ballot would have been nondeterminative. Noting the absence of any evidence that the delay in opening the polls affected the outcome of the election, the Board saw no reason to find that the possible disenfranchisement of a single employee whose ballot could not have been determinative warranted the setting aside of the election. In doing so, the Board stated that it had carefully avoided establishing a per se rule which could be easily abused. The same reasoning applies in the instant case. Here, the disenfranchised employee's vote was not determinative. Nor is there any evidence that the Employer's unintentional disenfranchise- ment of Hamblin in any way affected the outcome of the election." Idem. The N.L.R.B. went on to reverse the Regional Director's decision to set aside the election. In so doing, the Board was careful to note the following: "We distinguish the Employer's unintentional disenfranchisement of an employee, found here, from an employer's forcible prevention of -6- ______________________________________________________________________________ employees from voting. Marine Welding and Repair Works, Inc., supra. See also Pinter Bros., Inc., 227 NLRB 921, 947 LRRM 1284 (1977); Aldon, Inc., 201 NLRB 579, 587, 8Y LRRM 1399 (1973); Ace Letter Service Co., 187 NLRB 581, 76 LRRM 1093 (1970)." Idem, n.4 Applying the above reasoning to the facts now before us, we find that, at most, the Employer's action may have resulted in the disenfranchisement of Lavoie and of Metayer, who had the same employment status as Lavoie and who overheard Valliere's statements at the dispatcher's office. The certified results of the election were: 8 votes for no representation and 6 votes for representation by the Complainant Union. Were we to assume that, in the absence of Valliere's and Hodge's statements, both Lavoie and Metayer would have voted and opted for representation by the Complainant Union; the results of the election would have been 8 votes for no representation and 8 for the Union. The Union would not have won the election, therefore, the two votes were not determinative of the outcome of the election. Furthermore, we know that the statements of the Employer did not affect any other employees. Of those overhearing the conversation in the dispatcher's office, Rita Lauzier and Lucille Poulin voted in the election, Peter Harmon was ineligible to vote, and we have discussed the possible effect thereof on witness Metayer above. No one overheard the conversation between Hodge and Lavoie and Lavoie did not relate its contents to anyone, before the close of the polls. Since the disenfranchised voters' ballots were not potentially deter- minative of the election and since the Employer's actions could not have had any other adverse effect on the election; we hold that the Employer's state- ments in this case constitute de minimus violations of the Act. The final issue to be resolved concerns the propriety of the service of process by the Complainant upon the Respondent. The service requirement contained in 26 M.R.S.A. Section 968(5)(B) is fully explained in Rule 4.04 of our Rules and Procedures. The process statute cited by the Respondent, 20 M.R.S.A. Section 321-C, is part of the Maine-New Hampshire Interstate School Compact and, under the terms of 20 M.R.S.A. Section 311-B(4) applies only to interstate school district. No evidence was presented concerning the inter- state nature of the Respondent's school department, therefore, the threshold factual situation for the applicability of Section 321-C has not been properly established. Complainant fully complied with -7- ______________________________________________________________________________ the requirement of Rule 4.04 and we, therefore, hold that the service of process was proper in this case. ORDER Upon the basis of 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. Section 968(5), it is hereby ORDERED: 1. That the Prohibited Practices Complaint filed by the Biddeford Support Staff Association on March 11, 1981 in Case No. 81-47 be and hereby is dismissed. 2. That the Respondent's motion to dismiss, on the grounds of im- proper service of process, be and hereby is denied. Dated at Augusta, Maine this 16th day of November, 1981. The parties are advised of MAINE LABOR RELATIONS BOARD their right pursuant to 26 M.R.S.A. Section 968(5) (F) to seek a review by the Superior Court of this /s/_____________________________________ decision by filing a complaint Edward H. Keith, Chairman in accordance with Rule 80B of the Rules of Civil Pro- cedure within 15 days after receipt of this decision. /s/_______________________________________ Don R. Ziegenbein, Employer Representative DISSENTING OPINION Subsequent to a close and careful reading of the facts and the law applicable in this case, I must respectfully dissent from the view expressed in the Board's decision. The conduct of the Employer, acting through its agents, Hodge and Valliere, clearly disenfranchised two employees who were eligible to vote in the bargaining agent election. The Employer's conduct not only interfered with the rights of two employees to vote in the election, a right guaranteed by 26 M.R.S.A. Section 963, but also served to compromise the integrity of the electoral process. To allow employers to make ex parte rulings on who is and who is not eligible to vote in rep- -8- ______________________________________________________________________________ resentation elections, creates the impression that "the Employer had some effective connection with, if not control over, the election itself, insofar as [the Employer] appeared to be making an apparent official ruling which excluded employees from voting." Monroe Manufacturing Co., 200 N.L.R.B. 62, at 74 (1972). The majority decision, in my view, also opens the door for "distraction, last minute electioneering or pressure, and unfair advantage" for one party to the election over the other. Milchem, Inc., 170 N.L.R.B. 362, 362 (1968). Rather than adopt the case-by-case approach selected by the majority, I would opt for a per se rule mandating the setting aside of the election, in cases like that now before the Board. A per se rule is easily understood and simple to apply. By attaching sanctions in the event of a violation, a per se rule assures that the parties will avoid any and all coercion or appearances of coercion and control by the parties in representation elections. Adoption of a per se rule removes the Board from the unpleasant position of appearing to sanction illegal conduct, by a party to a Board-supervised election, through the semantic device of deeming said violations de minimis. /s/________________________________________________ Harold S. Noddin, Alternate Employee Representative -9-