Maine State Employees Association v. City of Lewiston, No. 83-14, 5 NPER 20-14016 (Feb. 23, 1983); rev'd sub nom. Council 74, AFSCME v. Maine Labor Relations Board, Maine State Employees Association, City of Lewiston, and Lewiston School Department, No. CV-83-114 (Me. Super. Ct., Ken. Cty., June 15, 1983); Board aff'd sub nom., Council 74, AFSCME v. Maine State Employees Association, 476 A.2d 699 (Me. 1984) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-14 Issued: February 23, 1983 _______________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Complainant, ) ) v. ) ) ) DECISION AND ORDER CITY OF LEWISTON, LEWISTON SCHOOL ) DEPARTMENT, AND COUNCIL 74, ) AMERICAN FEDERATION OF STATE, COUNTY, ) AND MUNICIPAL EMPLOYEES, ) ) Respondents. ) _______________________________________) This is a prohibited practices case, filed pursuant to 26 M.R.S.A. Section 968(5)(B) on November 30, 1982 by the Maine State Employees Association (MSEA).[fn]1 MSEA alleges in its complaint that the City of Lewiston and the Lewiston School Department (City) violated 26 M.R.S.A. Section 964(1)(A) by providing inaccurate lists of employees eligible to vote at a decertification election held on November 22, 1982, and that Council 74, American Federation of State, County, and Municipal Employees violated 26 M.R.S.A. Section 964(2)(A) by making misrepresentations to employees during the election campaign and by distributing a letter designed to discredit two MSEA supporters. The City and Council 74 each filed a response to the complaint on December 20, 1982. MSEA filed an amended complaint containing more specific allegations on January 14, 1983. A pre-hearing conference on the case was held on December 29, 1982, Alternate Chairman Donald W. Webber presiding. Alternate Chairman Webber issued on January 4, 1983 a Pre-Hearing Conference Memorandum and Order, the contents of which are incorporated herein by reference. A hearing on the case was held on February 9, 1983, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. MSEA was represented by Shawn Keenan, Esq., the City of _______________ 1/ MSEA also filed objections to the election pursuant to 26 M.R.S.A. Section 968(4) on November 30, 1982. We consolidated these objections with this prohibited practices proceeding but, in light of our disposition of the case, we see no need to rule on the objections. -1- Lewiston by Personnel Director Denis R. Jean, the Lewiston School Department by Superintendent of Schools Robert V. Connors, and Council 74 by Harold L. Lichten, Esq. Full opportunity was given to the parties to examine and cross- examine witnesses, introduce evidence, and make argument. The parties presented oral argument at the conclusion of the hearing. JURISDICTION MSEA is a public employee organization within the meaning of 26 M.R.S.A. Section 968(5)(B). The City of Lewiston and the Lewiston School Department are public employers as defined in 26 M.R.S.A. Section 962(7). Council 74 is the bargaining agent for Lewiston's general government employees bargaining unit, composed of employees of the City of Lewiston and of the Lewiston School Department. The jurisdiction of the Maine Labor Relations Board to hear this case and render a decision and order lies in 26 M.R.S.A. Section 968(5)(B). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board finds: 1. On October 6, 1982 MSEA petitioned the Labor Relations Board for an election to decertify Council 74 and certify MSEA as the bargaining agent for the general government employees bargaining unit. The Executive Director's designee sent a letter on October 20, 1982 to the parties scheduling the election for November 22, 1982. The letter states among other things that the City was obligated pursuant to Rule 3.02(B) of the election rules to furnish the Labor Relations Board and the parties to the election an alphabetical list of the names and addresses of the employees in the bargaining unit so that a final voting list could be prepared. Accompanying the letter were copies of the election rules as well as copies of the notice of the election, which the City was required to post at work sites. The notice states in pertinent part: "Those persons eligible to vote shall be the employees of this unit and shall be those employees on the payroll on the date of the filing of the petition (October 6, 1982), and who remain on the pay- roll on the date of the election (November 22, 1982), and meet the requirements set forth in Title 26, Maine Revised Statutes Annotated, Section 962, paragraph 6, defining 'public employee.' -2- 2. On October 28, 1982 the Superintendent of Schools furnished the voting list of School Department bargaining unit employees, and on November 1st the City's Personnel Director furnished the voting list of City employees. Included in the lists were the names and addresses of at least ten probation- ary employees who had not been employed for at least 6 months as of the date of the election and who therefore were not members of the bargaining unit. 3. One hundred twenty-one employees voted in the November 22, 1982 election, with 62 votes going to Council 74, 53 votes to MSEA, 3 votes in favor of no representative, and 3 ballots challenged pursuant to Rule 3.06 of the election rules. At least seven of the probationary employees voted in the election and were not challenged by any party, although Council 74 did challenge the ballot of one other voter on the ground that she was a proba- tionary employee. Council 74 knew that some probationary employees were included in the voting lists, but the record does not show whether MSEA was aware of this fact. Since Council 74 received a majority of the votes cast (62 out of 121) and since the 3 challenged ballots could not have affected this majority, the election officer certified that Council 74 had been elected the bargaining agent for the unit. 4. The votes cast by the 7 ineligible voters may have affected the outcome of the election. If 7 votes are deducted from the total number of votes cast and from the number of votes received by Council 74, then 114 votes were cast with Council 74 getting 55 votes, or less than the majority required by 26 M.R.S.A. Section 967(2) for certification as bargaining agent. Since the 3 challenged ballots might have provided Council 74 with a majority of votes even if 7 votes were deducted, we directed the Executive Director to conduct an "expedited preview" of the challenged ballots as provided in Rule 3.06(A) of the election rules to determine whether these ballots could be determinative of the election. After examining the challenged ballots the Executive Director reported that the ballots would not under any scenario provide Council 74 with a majority of the votes cast or otherwise be determinative of the outcome of the election. The existence of 3 challenged ballots therefore does not alter the fact that the 7 ineligible voters could have influenced the outcome of the election. DECISION At issue are the questions whether the City violated 26 M.R.S.A. Section 964(1)(A) by including employees who were not members of the bargaining unit on the voting -3- lists and whether Council 74 violated 26 M.R.S.A. Section 964(2)(B) by making allegedly misleading and coercive statements to employees during the election campaign. We find that the City interfered with the bargaining unit employees' right to a free and fair election in violation of Section 964(1)(A) by including non-unit employees in the voting lists, and do not reach the issues raised by Council 74's statements. We will set aside the results of the November 22nd election and direct the Executive Director to conduct a new election as soon as possible. Rule 3.02(B) of the election rules, 12-180 CMR Chapt. 3, Section 3.02(B), imposes on employers the duty to furnish voting lists of bargaining unit employees prior to the election: "At least ten (10) working days prior to the election or mail- ing of ballots, the employer shall furnish, to each labor organiza- tion which is a party to the proceeding and to the Executive Director, a list of the names and addresses of the employees in the appropriate unit who are on the payroll on the pay period prior to the setting of the election by the Executive Director and who are also on the payroll at the time of the submission of the list." This rule is based on the National Labor Relations Board's Excelsior rule.[fn]2 By stating that the names and addresses of employees "in the appropriate unit" shall be furnished, Rule 3.02(B) obviously contemplates that employees made ineligible for inclusion in bargaining units by 26 M.R.S.A. Sections 966(1) and 962(6) - such as probationary employees, department heads, confidential employees, on-call employees, etc. - will not be included in the voting list.[fn]3 As Rule 3.02(A), 12-180 CMR Chapt. 3, Section 3.02(A), states: "The employees eligible to vote shall be those who were employed on the last pay date prior to the filing of the petition and who remain on the payroll on the date of the election, and meet the requirements set forth in Title 26 M.R.S.A. Section 962, paragraph 6, defining 'public employee.' " _______________ 2/ Excelsior Underwear, Inc., 156 NLRB 1236 (1966). The Supreme Court approved the Excelsior rule in NLRB v. Wyman-Gordon, Inc., 394 U.S. 759, 89 S.Ct. 1426, 22 L.Ed.2d 709 (1969). 3/ Title 26 M.R.S.A. Sec. 966(1) states in pertinent part that "anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit." Section 962(6)(F) provides that any person "[w]ho has been employed less than 6 months" is not a public employee. -4- The City's Personnel Director and the Superintendent of Schools both were given a copy of the election rules when the election was scheduled and, in addition, both were forwarded multiple copies of the election notice, which also cited Section 962(6) and defined who was eligible to vote. We therefore find that the City had no reason for not knowing that it was required to furnish lists containing only the names and addresses of bargaining unit employees. The lists furnished by the City contain the names and addresses of at least 10 probationary employees who were not members of the bargaining unit, however, and at least 7 of these employees voted in the election, a sufficient number of votes to taint the outcome of the election. The test employed by the National Labor Relations Board in determining whether an employer has satisfied the Excelsior requirement is as follows: "Although it is not Board policy to apply the Excelsior rule mechanistically, neither is it our policy to vest the employer with unlimited discretion with respect to the content of the eligi- bility list. The rule's value as a means of insuring a fair and free election lies in its simplicitly and ease of administration. For this reason, we need look only to whether or not under the circumstances of a particular case, the employer has substantially complied with its Excelsior obligations. As we recently noted, the rule imposes a simple duty on employers which can be satisfied by the application of a reasonable amount of diligence." Centre Engineering, Inc., 253 NLRB 419, 439 (1980), quoting Ponce Television Corp., 192 NLRB 115, 116 (1971). By including a sufficient number of non-bargaining unit employees on the lists to affect the outcome of the election, contrary to the rule that only bargaining unit employees be included in the lists, the City did not substantially comply with Rule 3.02(B). Such conduct also interfered with the rights of the bargaining unit employees, guaranteed by 26 M.R.S.A. Section 963, to have a fair and free election. Since the votes cast by the 7 ineligible voters may have affected the outcome of the election, the desires of a majority of the eligible voters may have been thwarted. We therefore find that by interfering with the unit employees' rights to a fair election the City violated 26 M.R.S.A. Section 964(1)(A).[fn]4 4/ Section 964(1)(A) prohibits public employers from "[i]nterfering with, restraining or coercing employees in the exercise of the rights guaranteed in Section 963." Section 963 states: -5- Since the results of the November 22nd election may have been tainted by the ineligible voters, we will set aside the election and order that a new election be held.[fn]5 The City will be obligated to provide new voting lists which must include the names and addresses only of those employees who are members of the general government employees bargaining unit and who were on the payroll at the appropriate times. The employees who were probationary employees at the time of the November 22nd election will be eligible to vote in the new election if they have acquired 6 months of employment with the City or the School Department by the time of the new election and are otherwise members of the bargaining unit. ORDER Based on the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. Section 968(5), it is ORDERED: _______________ 4/ No one shall directly or indirectly interfere with, intimidate, restrain, coerce or discriminate against public employees or a group of public employees in the free exercise of their rights, hereby given, voluntarily to join, form and participate in the activities of organizations of their own choosing for the purposes of representation and collective bargaining, or in the free exercise of any other right under this chapter. The test for a violation of Section 964(1)(A) does not turn on the employer's intent or on whether the interference succeeded or failed, but "is whether the employer engaged in conduct which, it may reasonably be said, tends to inter- fere with the free exercise of employee rights under the Act." NLRB v. Ford, 170 F.2d 735, 738 (6th Cir. 1948); Teamsters Local 48 v. Town of Oakland, MLRB No. 78-30 at 3 (Aug. 24, 1978). The City unquestionably violated this standard in the present case. 5/ Council 74's contention that MSEA waived the right to object to the inaccurate lists by failing to challenge the ineligible voters when they voted, while certainly a persuasive argument under the right set of facts, fails in the present case because the record does not show that MSEA was aware that ineligible employees were included on the lists. We also note that under some circumstances, even when the union is aware of an inaccurate list prior to the election, its failure to object does not operate as an estoppel of its right to raise the issue subsequent to the election. See, e.g., Ponce Television Corp., 192 NLRB at 116, n.9. -6- 1. That the City of Lewiston and the Lewiston School Department, and their representatives and agents, cease and desist from furnishing voters' lists which contain the names and addresses of employees who are not members of the appropriate bargaining unit. 2. That the November 22, 1982 election for the general government employees bargaining unit is set aside. The Executive Director is directed to conduct a new election for this bargaining unit as soon as possible. Dated at Augusta, Maine this 23rd day of February, 1983. MAINE LABOR RELATIONS BOARD /s/___________________________________ Edward H. Keith Chairman /s/___________________________________ Don R. Ziegenbein Employer Representative /s/___________________________________ Harold S. Noddin Employee Representative The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968(5)(F), to seek a review by the Superior Court of this decision by filing a complaint in accordance with Rule 80-B of the Rules of Civil Procedure within 15 days after receipt of this decision. -7-