STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-47
Issued: November 16, 1981
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)
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 )
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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-
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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.
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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.
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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.
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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
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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
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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
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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-
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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
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