STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case Nos. 86-22, 86-25 and
86-A-03
Issued: March 10, 1987
___________________________________________
)
AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL EMPLOYEES, )
COUNCIL 93, AFL-CIO, )
)
Petitioner, )
)
and )
)
MAINE SCHOOL ADMINISTRATIVE )
DISTRICT NO. 1, )
)
Employer; )
)
AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL EMPLOYEES, )
COUNCIL 93, AFL-CIO, )
)
Complainant, ) DECISION AND ORDER
) and
v. ) DECISION AND ORDER
) ON ELECTION APPEAL
MAXINE MAYNARD, )
)
Respondent and Counterclaimant; )
)
and )
)
AMERICAN FEDERATION OF STATE, )
COUNTY AND MUNICIPAL EMPLOYEES, )
COUNCIL 93, AFL-CIO, )
)
Complainant, )
)
v. )
)
MAINE SCHOOL ADMINISTRATIVE DISTRICT )
NO. 1, and Its Representatives and Agents, )
)
Respondents. )
___________________________________________)
The Complainant, American Federation of State, County and
Municipal Employees, Council 93, AFL-CIO ("Union"), brings a prohib-
ited practice complaint against a public employee, Maxine Maynard
("Employee"), who filed a successful petition for election to
-1-
decertify the Union as the bargaining agent for a particular
bargaining unit. The Union charges that the Employee interfered with,
restrained, or coerced other unit employees' exercise of the rights
protected by the Maine Public Employees Labor Relations Law ("Act")
26 M.R.S.A. ch. 9-A (1974 & Pamph. 1986) by: (1) typing the names of
the unit employees on a showing of interest in support of the decer-
tification petition, prior to the employees' signing the same; (2)
stating on the showing of interest document that it had been requested
by the Executive Director of the Maine Labor Relations Board
("Board"); (3) providing the showing of interest executed by some unit
employees to the public employer; (4) filing a petition for decer-
tification election which was allegedly irregular on its face in that
it was signed on one day and notarized on the next and the Employee
represented herself as the "Shop Steward" thereon; and (5) using an
exemplar ballot in election propaganda. By way of counterclaim, the
Employee charges that the Union violated 964(2)(A) of the Act by
excluding her from two meetings of bargaining unit employees.
The Union also brings a separate prohibited practice complaint
against Maine School Administrative District No. I and its repre-
sentatives and agents (referred to together herein as "Employer"),
charging that the Employer violated 26 M.R.S.A. 964(1)(A), (B), and
(C) by: (1) promising bargaining unit employees that they would be
"treated royally" if they decertified their bargaining agent; and (2)
by assisting the circulation of the showing of interest in support of
the petition for decertification election by permitting the Employee
to use the Employer's equipment to prepare the showing, to use the
Employer's telephones and internal mail service to facilitate the
solicitation of employees to sign the showing, and to actually solicit
employees to sign the showing during working time and in work areas.
The Union's prohibited practice complaint against the Employee
was filed pursuant to 26 M.R.S.A. 968(5)(B) (Pamph. 1986) on May 21,
1986. The Employee filed her answer on June 9, 1986, interposing
three procedural defenses to the Union's complaint, denying that the
Employee had violated any provision of the Act and moving to dismiss
the Union's complaint. The Union filed its objection to election on
-2-
May 29, 1986, alleging that the decertification election of May 27,
1986, should be set aside on the basis of the violations of the Act
which are the subject of its complaint against the Employee. The
Union filed its complaint against the Employer on June 9, 1986,
alleging that the Employer's alleged actions violated 964(1)(A),
(B), and (C) of the Act. The Employer filed its answer on June 27,
denying that the Employer violated any provision of the Act, and
moving to dismiss the Union's complaint. On June 25, 1986, the
Employee filed her counterclaim against the Union, alleging that, by
excluding the Employee from two meetings, the Union violated
964(2)(A) of the Act. The Union's objection to the election, its
prohibited practice complaints and the Employee's counterclaim are all
consolidated for determination in this case.
A prehearing conference on the case was held on June 19, 1986,
Alternate Chairman Donald W. Webber presiding. On June 23, 1986,
Alternate Chairman Webber issued a Prehearing Conference Memorandum
and Order, the contents of which are incorporated herein by reference.
A hearing on the merits of the case was conducted by the Board,
Chairman Edward S. Godfrey presiding, with Employer Representative
Thacher E. Turner and Employee Representative George W. Lambertson, on
July 1, 1986. The Union was represented by Stephen P. Sunenblick,
Esq., the Employee was represented by David A. Dunlavey, Esq., and the
Employer was represented by Hugh G. E. MacMahon, Esq. The parties
were given full opportunity to examine and cross-examine witnesses, to
introduce documentary evidence, and to make argument. The parties
filed posthearing briefs, the last of which was received on
July 29, 1986, which were considered by the Board in reaching its
decision. We hold that none of the parties violated any provision of
the Act and we will, therefore, dismiss the Union's complaints and
objection to election and also the Employee's counterclaim.
JURISDICTION
Complainant American Federation of State, County and Municipal
Employees, Council 93, AFL-CIO, is a lawful organization which has as
-3-
its primary purpose the representation of employees in their
employment relations with employers and which, until May 27, 1986, was
the certified bargaining agent, within the definition of 26 M.R.S.A
962(2) (1974), for a bargaining unit composed of the secretaries,
teachers' aides, and cooks employed by Maine School Administrative
District No. 1. Respondent and Counterclaimant Maxine Maynard is a
public employee, within the definition of 26 M.R.S.A. 962(6) (1974 &
Pamph. 1986), whose job classification is included in the bargaining
unit mentioned in the preceding sentence. Maine School Administrative
District No. 1 is the public employer, within the definition of 26
M.R.S.A 962(7) (Pamph. 1986), of the employees whose job classifica-
tions are included in the bargaining unit noted in the first sentence
of this paragraph. The jurisdiction of the Maine Labor Relations
Board to hear this case, to render a decision and order herein lies in
26 M.R.S.A. 968(5) (1974 & Pamph. 1986); its jurisdiction to rule on
the objection to election lies in 26 M.R.S.A. 968(4) (Pamph. 1986).
FINDINGS OF FACT
Upon review of the entire record, the Labor Relations Board
finds:
1. Complainant American Federation of State, County and
Municipal Employees, Council 93, AFL-CIO, is a lawful organization
which has as its primary purpose the representation of employees in
their employment relations with employers and which, until may 27,
1986, was the certified bargaining agent, within the definition of 26
M.R.S.A. 962(2) (1974), for a bargaining unit composed of the seecre-
taries, teachers' aides, and cooks employed by Maine School
Administrative District No. 1.
2. Respondent and Counterclaimant Maxine Maynard is a public
employee, within the definition of 26 M.R.S.A. 962(6) (1974 & Pamph.
1986), whose job classification is included in the bargaining unit
mentioned in the preceding paragraph.
3. Respondent Maine School Administrative District No. 1 is the
public employer, within the definition of 26 M.R.S.A. 962(7) (Pamph.
1986), of the employees whose job classifications are included in the
-4-
bargaining unit noted in paragraph 1 hereof.
4. Prior to January, 1985, Ms. Maxine Maynard, a secretary
employed by Maine School Administrative District No. 1, was elected
and served as the shop steward for the secretaries included in the
bargaining unit mentioned in paragraph 1, supra.
5. On January 16, 1985, new officers and stewards were elected
by the membership of the union local constituted of the employees in
the bargaining unit noted in paragraph 1 hereof. Despite not being
re-elected as shop steward for the secretaries, Ms. Maynard was never
notified of the election results. During the period between
January 16, 1985 and the decertification election described below,
she was the only person who ever performed functions of a shop steward
for the secretaries in the bargaining unit.
6. On December 5, 1985, local union vice-president Jane Pryor
requested copies of petitions for election, the Maine Municipal Public
Employees Labor Relations Law, and the Labor Relations Board's Rules
and Procedures from the Board's office.
7. During late 1985 and early 1986, the Union and the Employer
were beginning negotiations for a successor collective bargaining
agreement to the parties' 1984-1986 agreement. Since one Union nego-
tiator's husband was gravely ill, with the possibililty that she might
miss some of the bargaining sessions, Ms. Maynard was asked to and
joined the Union bargaining team as an alternate member thereof.
8. Although the regular team members for whom she was to serve
as an alternate attended all of the bargaining sessions, Ms. Maynard
also was present therefor.
9. At a negotiating committee meeting on January 2, 1986,
Ms. Maynard and Ms. Pryor urged the decertification of the Union as
the bargaining agent for the unit mentioned in paragraph 1, supra.
10. On January 7, 1986, the secretaries employed by Maine School
Administrative District No. 1 held a meeting where Ms. Maynard and
Ms. Pryor proselytized in favor of decertifying the Union. A document
was circulated and signed by all of the employees in attendance,
-5-
authorizing pursuit of the decertification process.
11. On or about January 7, 1986, the aides and the cooks employed
by Maine School Administrative District No. 1 each held separate
meetings where Ms. Pryor or Ms. Maynard explained that the secretaries
had authorized pursuit of the decertification process and sought the
support of the aides and the cooks therein. A document similar to
that signed by the secretaries was circulated and signed by several of
the aides and cooks.
12. Some time before March 23, 1986, Ms. Pryor prepared the
showing of interest in support of the petition for decertification
election. She prepared the showing after normal working hours on her
typewriter at the Pine Street School. Ms. Pryor dated the showing of
interest April 1, 1986, the date she intended that it be filed with
the Labor Relations Board, and captioned it as follows:
To: Executive Director, Maine Labor Relations Board
From: Maxine Maynard, Secretary
Re: Petition requested by number 7, form 5 - MLRB
As per request, below please find necessary signatures
representing at least 30% of employees wishing decertification
from AFSCME, our exclusive bargaining agent.
13. Following the above caption, the showing of interest con-
tained two columns of blank lines, the first column was labelled
"Name" and the second was headed by the word "Position."
14. On March 23, 1986, a meeting open to all bargaining unit
employees was held at the Pine Street School. The showing of interest
described in the preceding two paragraphs was available and was signed
by several bargaining unit employees at that time.
15. Ms. Maynard signed the petition for decertification election
on March 28, 1986, and listed her position thereon as "Shop Steward."
Ms. Maynard acknowledged her signature on the petition before a
Justice of the Peace on April 1, 1986.
16. Paragraph 7 of the Labor Relations Board petition for elec-
tion form in use at that time read as follows:
If filed by an employees or employee organization, the
petition should be substantiated by a showing that at least
-6-
30% of the employees in the bargaining unit do/do not desire
to be represented in their employment relations by the
prospective/existing bargaining agent (strike inappropriate
language). Any showing of interest must comply with Section
2.03 or Section 3.01(B), whichever is appropriate, of the
Rules and Procedures of the Maine Labor Relations Board.
The proof may be appended as exhibits; identify same here.
17. Rule 2.01 of the Board's Rules and Procedures requires a
decertification petitioner to serve a copy of the petition on both the
exclusive bargaining agent and the public employer within 3 working
days from the date on which the petition is filed with the Board.
18. On April 1, 1986, the petition for decertification election
was filed with the Board and, shortly thereafter, copies of the peti-
tion and the supporting showing of interest were served on the
Employer and the Union.
19. On April 7, 1986, a member of the Board's staff telephoned
Ms. Maynard that the showing of interest filed with the Board did not
comply with Rule 2.03 of the Board's Rules, which incorporates Rule
1.05(B) by reference. The showing contained neither the typewritten
or printed name of the employees nor the date on which each employee
signed the showing. Ms. Maynard was told that the Board would not act
on the petition for election until a showing of interest complying
with the Board's Rules was filed.
20. On April 17, 1986, Ms. Maynard told her supervisor, the
school librarian at Presque Isle High School, that she needed to take
an extended lunch break the following day, explaining "I have
something of great importance to me to take care of." The librarian
agreed, and Ms. Maynard worked an additional 15 minutes each day for
several days to make up for the time off that she took on April 8th.
21. Before her normal working hours on April 8, 1986, Ms. Maynard
prepared a second showing of interest and petition for decertification
election on her office typewriter. The new showing of interest was
captioned as follows:
To: EXECUTIVE DIRECTOR, MAINE LABOR RELATIONS BOARD
From: MAXINE MAYNARD, SECRETARY
Re: SHOW OF INTEREST
-7-
As per request, below please find necessary signatures
representing at least 30% of employees wishing decertification
from AFSCME, our exclusive bargaining agent.
The caption was followed by three columns: in the first column,
Ms. Maynard typed the names of the employees who had signed the first
showing in the same order as each had signed; the second column con-
sisted of blank lines on which each employee could sign his/her name;
and the third column consisted of blank lines on which each employee
could enter the date on which they signed the document.
22. Employees signing the second showing who had not signed the
first had their names typed onto the form, after they had signed and
entered the date in the appropriate columns.
23. On April 8, 1986, Ms. Maynard circulated the second showing
of interest as follows: she collected signatures at Presque Isle High
School during her morning break; the showing was then sent by school
department courier to the Westfield School, where it was signed by
some employees and from which it was returned, by school department
courier, to Ms. Maynard; during her extended lunch break, Ms. Maynard
collected signatures at the Zippel School, the Cunningham School, and
the Mapleton School; finally, after the students' school day,
Ms. Maynard sent the showing to the Pine Street School with
Ms. Pryor's son, a student at the high school, to be signed by
employees there.
24. On April 11, 1986, Ms. Maynard signed the second petition for
decertification election, again listing her position thereon as "Shop
Steward." Ms. Maynard acknowledged her signature on the petition
before a Justice of the Peace on April 9, 1986. Shortly thereafter,
both the second petition and its showing of interest were served on
the Board, the Union, and the Employer.
25. Shortly after the Union received the petition and its accom-
panying showing of interest, Union International Representative
H. Ross Ferrell asked local Union president Carole Soucy to call a
meeting of the local Union officers and bargaining team members.
Mr. Ferrell explicitly asked Ms. Soucy not to invite either
Ms. Maynard or Ms. Pryor to the meeting and not to inform them of the
-8-
meeting despite their membership on the bargaining team.
26. Pursuant to Mr. Ferrell's request, a meeting of the local
Union officers and bargaining team members, except for Ms. Maynard and
Ms. Pryor, was held at the Northeastland Hotel. The decertification
petition and the upcoming election were the subjects discussed at the
meeting.
27. Prior to the election, the Union sent two mailings to all
bargaining unit employees, urging them to opt for retention of the
Union as their bargaining agent. During March of 1986, Ms. Maynard
prepared a one-page flier and sent a copy to each of the bargaining
unit employees, through the U.S. Mail at her expense.
28. The flier drafted by Ms. Maynard urged the bargaining unit
employees to vote in the bargaining agent election and contained the
following:
SAMPLE BALLOT
______________________ _______________________
( ) ( )
( I DESIRE ) ( I DESIRE )
( AFSCME ) ( NO REPRESENTATIVE )
(______________________) (_______________________)
"X"
ALL BY SECRET BALLOT.
PLEASE LET ONE OF US KNOW IF YOU NEED A RIDE.
29. The flier mentioned in the preceding paragraph was signed by
four bargaining unit employees, including Ms. Maynard, and included
The employees' telephone numbers.
30. During the week preceding the bargaining agent election,
Union representatives, with the permission of the Employer, scheduled
-9-
and conducted employee meetings in break areas of the various schools
in the district. The Employer granted all the Union's requests for
access to the school premises.
31. On May 22, 1986, a meeting open to all the bargaining unit
employees was held at the Pine Street School. Four Union represen-
tatives attended the meeting and urged the assembled employees to vote
to retain the Union as their bargaining agent. Employees favoring
Decertification of the Union, including Ms. Maynard, also presented
their views at the meeting.
32. On May 27, 1986, the Board's Executive Director conducted a
bargaining agent election for the unit mentioned in paragraph 1.
of the 75 employees eligible to vote, 64 cast their ballots, 29 voting
to retain the Union as their bargaining agent, 34 voting for the pro-
position of No Representative. One ballot did not indicate either
alternative.
33. The Employer permits its employees to make reasonable use of
its facilities, including typewriters, telephones, their own offices,
meeting rooms, and the school department courier service, for the
employees' personal business.
34. The Union filed its prohibited practices complaint against
Ms. Maynard (Case No. 86-22) with the Executive Director on
May 20, 1986. Ms. Maynard received a copy of the complaint on
May 21, 1986.
DECISION
This matter involves three separate cases, two prohibited prac-
tice complaints and an objection to a bargaining agent election.
All three of the actions concern the conduct of the various parties
during the period of time preceding a bargaining agent decertification
election for a certain bargaining unit of employees of Maine school
Administrative District No. 1. Since they arose out of the same
series of occurrences, the cases were consolidated for purposes of
hearing and decision. We will examine each party's charges in
separate sections of the ensuing discussion.
-10-
The Union's charges against the Employer. The Union alleges that
the Employer violated 26 M.R.S.A. 964(1)(A), (B), and (C) by: (1)
promising bargaining unit employees that they would be "treated
royally" if they opted to decertify the Union as their bargaining
agent; (2) permitting a bargaining unit employee to solicit signatures
for a showing of interest in support of a petition for decertification
election, during working time and in work areas; and (3) permitting
bargaining unit employees to use the Employer's facilities, including
its premises, office equipment, telephones, and the school department
courier service, in the efforts of those employees to decertify the
Union as their bargaining agent.
The Union's case against the Employer turns on whether
Ms. Maynard was a person "acting on behalf of" the Employer, within
the meaning of 26 M.R.S.A. 962(7) (Pamph. 1986), when she made cer-
tain statements and took certain actions. Unless Ms. Maynard was
"acting on behalf of" the Employer at the times in question, the
Employer is not responsible for her actions. Teamsters Local Union
No. 48 v. City of Ellsworth, MLRB No. 78-03, slip op. at 2 (Oct. 12,
1977). An individual acts "on behalf of" a public employer if he acts
at the behest of and is subject to control by the public employer.
Baker Bus Service, Inc. v. Keith, 416 A.2d 727, 730 (Me. 1980).
We therefore focus our inquiry on whether Ms. Maynard was "acting on
behalf of" the Employer at the times in question.
We have held that by making certain types of pre-election state-
ments a public employer interferes with the right of bargaining unit
employees to choose freely whether to be represented by a bargaining
agent for collective bargaining purposes. Council No. 74, AFSCME v.
Maine School Administrative District No. 1, MLRB No. 80-04, slip op.
at 5 (Feb. 29, 1980). The rule controlling public employers' pre-
election statements is as follows:
We have held that a public employer violates 26
M.R.S.A. 964(1)(A) (1974) if it engages in conduct or
makes statements which, "it may reasonably be said,"
tends to interfere with the free exercise of employee
rights under the Act. Kittery Employees Ass'n v. Strahl,
MLRB No. 86-16, slip op. at 7 (Aug. 6, 1986); Maine State
Employees Ass'n v. State Development Office, MLRB No. 84-21,
-11-
slip op. at 8-9 (July 6, 1984), aff'd, 499 A.2d 165, 169
(Me. 1985). In particular, statements which either threaten
employees with loss of employment benefits or which promise
improved conditions of employment as inducements for the
non-selection, circumvention, or ouster of a bargaining
agent have been held to violate 964(1)(A) of the Act.
Teamsters Local Union No. 48 v. Town of Kittery, MLRB No.
84-25, slip op. at 5-7 (July 13, 1984); Teamsters Local
Union No. 48 v. Rumford/Mexico Sewerage Diitrict, MLRB No.
84-08, slip op. at 6-7 (Mar. 12, 1984). Such statements
have been deemed coercive, regardless of their being
couched in terms of the speaker's "personal opinion."
Bridgton Federation of Public Employees v. Hamill, MLRB
No. 81-54, slip op. at 9 (Mar. 3, 1982).
Kittery Employees Ass'n v. Strahl, MLRB No. 86-23, slip op. at 7
(Jan. 27, 1987).
The statements allegedly made by Ms. Maynard which the Union has
attempted to attribute to the school district's Business Manager and
hence to the Employer would constitute promises of benefit in return
for the decertification of the Union. Had the Union been successful
in substantiating its allegation concerning the origin of the state-
ments, the Employer would have violated 964(1)(A) of the Act.
However, while requiring the highest standards of election conduct in
order to insure the laboratory conditions necessary for a free and
untrammeled choice in representation elections, "the Board is reluc-
tant to find that conduct has occurred which requires that an elec-
tion's result be overturned and a certification be revoked, where, as
here, the evidence establishing the existence of such alleged conduct
consists solely of uncorroborated hearsay." Phippsburg School Depart-
ment v. AFSCME, Council 93, MLRB No. 87-A-02, slip op. at 3-4
(Nov. 25, 1986). The Union's attribution of the statements at issue
to the Employer is based solely upon the hearsay testimony of a single
witness. While testifying that Ms. Maynard had uttered the relevant
statements, the other witnesses called by the Union stated that the
declarations were made as expressions of Ms. Maynard's own opinion and
that she had not attributed them to any management official.
Ms. Maynard denied both ever having discussed decertification of the
Union with the Business Manager and ever having made the statements
at issue. Thus, the hearsay testimony was rebutted by direct testi-
-12-
mony. Although it had the opportunity to do so, the Union failed to
call the Business Manager as a witness in this proceeding. We hold
that the Union failed to establish any connection between Ms. Maynard's
statements and the Employer. The Employer cannot be held to have
violated the Act in relation to the declarations.
The Union's second major contention is that the Employer violated
26 M.R.S.A. 964(1)(A) by permitting Ms. Maynard to solicit signa-
tures for a showing of interest in support of the decertification
election petition during working time and in work areas. While the
record shows that Ms. Maynard did solicit some signatures in work
areas, the uncontroverted evidence establishes that Ms. Maynard was
not working at those times, and no evidence was presented as to
whether the employees whose signatures were being solicited were
working at those times. More importantly, the record does not show
that the Employer had any knowledge of Ms. Maynard's solicitation
activities. Ms. Maynard approached her supervisor, the high school
librarian who is a member of a different bargaining unit, and received
permission to take an extended lunch hour to do something "very impor-
tant to her." The librarian did not ask and Ms. Maynard did not
relate the purpose of the time off. No other evidence was offered
concerning the Employer's knowledge of Ms. Maynard's solicitation
effort. In a similar case, a public employer, without knowing that a
showing of interest in support of a decertification petition would be
forthcoming, permitted some on-duty employees to attend an employee
meeting. We held that since the employer had not called the meeting,
or urged the employees to attend, or even knew its purpose, the
employer could not be held to have unlawfully interfered with the free
exercise of the rights guaranteed by the Act. Local 1599, IAFF v.
City of Bangor, MLRB No. 80-24, slip op. at 3 and 5 (Nov. 6, 1980).
Here, the Employer did not request, promote, or even know about the
solicitation. The Union failed to prove its allegation that the
Employer violated 964(1)(A) in connection with Ms. Maynard's
solicitation activities.
The Union's third major contention against the Employer is that
by permitting bargaining unit employees to use its facilities,
-13-
including its premises, office equipment, telephones, and the school
department courier service in their efforts to decertify the Union
the Employer violated 964(1)(A) of the Act. The evidence presented
established that Ms. Maynard and Ms. Pryor often discussed the decer-
tification process using the Employer's telephones, that the two
decertification petitions and their accompanying showings of interest
were prepared on the employees' office typewriters during non-working
time, and that the second showing of interest was in part circulated
by the school department's courier service. The record also estab-
lished that bargaining unit employees are permitted to make reasonable
use of the same facilities for their personal business. There was no
evidence presented that the Employer knew that its facilities and
equipment were being used in the decertification effort. The Union
failed to satisfy its burden of proving this allegation also.
The Union alleged, generally, that the Employer had violated 26
M.R.S.A. 964(1)(B) (1974). That section of the Act prohibits public
employers from "encouraging or discouraging membership in any employee
organization" through discriminatory action "in regard to hire or
tenure of employment or any term or condition of employment." Since
the Employer took no action affecting the hire, tenure, or any con-
dition of employment of the unit employees, we dismiss this aspect of
the Union's charge.
The Union's final contention against the Employer was that the
Employer's conduct violated 26 M.R.S.A. 964(1)(C) (1974). We have
repeatedly noted that that section of the Act "is directed at the evil
of too much financial or other support of, encouraging the formation
of, or actually participating in the affairs of the union and thereby
potentially dominating it." Teamsters Local Union No. 48 v. Town of
Fort Fairfield, MLRB No. 86-01, slip op. at 13 (Jan. 24, 1986);
Teamsters Local Union No. 48 v. Eastport School Department, MLRB No.
85-18, slip op. at 8 (Oct. 10, 1985). The Union failed to prove that
Ms. Maynard was acting on behalf of the Employer, and it offered no
other evidence that the Employer participated in or otherwise sup-
ported the activities of the Union or of any other employee organiza-
tion. Therefore, the Employer did not violate 964(1)(C) of the Act.
-14-
The Union's charges against the Employee.fn1 The Union alleges
that the Employee, Ms. Maynard, violated 26 M.R.S.A. 964(2)(A)
(1974) by: (1) typing the names of bargaining unit employees on a
showing of interest in support of a petition for decertification elec-
tion, before the employees signed the showing of interest; (2) stating
on the showing of interest document that it had been requested by the
Executive Director of the Board; (3) providing the Employer with an
executed showing of interest; (4) filing a petition for decertifi-
cation election which was irregular on its face in that it was signed
by the Employee/Petitioner on one day and notarized on another day
and the Employee/Petitioner represented herself as being the "Shop
Steward" thereon; and (5) using an exemplar ballot in election
propaganda.
The relevant prohibition against certain public employee conduct
contained in 964(2)(A) is expressed in terms identical with the
proscription in 964(1)(A) against certain public employer activity.
In deciding whether a public employee has transgressed the
964(2)(A) prohibition against "[ilnterfering with, restraining or
coercing employees in the exercise of the rights guaranteed in section
963," we will apply the same standard we use in considering alleged
violations of 964(1)(A). A public employee violates the relevant
portion of 964(2)(A) if he or she engages in conduct or makes state-
ments which, "it may reasonably be said," tends to interfere with the
free exercise of employee rights under the Act. Kittery Employees
Ass'n v. Strahl, MLRB No. 86-16, slip op. at 7 (Aug. 6, 1986); Maine
State Employees Ass'n v. State Development office, MLRB No. 84-21,
slip op. at 8-9 (July 6, 1984), aff'd 499 A.2d 165, 169 (Me. 1985).
The Union's first allegation is that the Employee violated
964(2)(A) by pretyping the names of bargaining unit employees on the
_______________
1 The Employee raises certain procedural defenses to the Union's
prohibited practice complaint against her. Since in any event we must
address the merits of the Union's complaint against the Employer, in
which the factual issues are similar to those raised by the complaint
against the Employee, we shall determine the merits of the latter
complaint. In view of our disposition of the case on the merits, we
find it unnecessary to address the issues raised by the Employee's
procedural defenses.
-15-
showing of interest in support of petition for decertification elec-
tion. In our view, the typing of the names of bargaining unit
employees on a showing of interest which is in the form of a listing
of employees, prior to the signing of said showing by the employees,
may well be subtly coercive. Generally speaking, we disapprove of
the practice as a matter of policy.fn2 In the circumstances of this
case, however, we hold that the pretyping of the employees' names was
not unlawfully coercive because it occurred on the second showing of
interest and the employees whose names were pretyped had already
signed the first showing which did not contain pretyped names.
The Union charges that inclusion of the phrase "as per request"
on the showing of interest interfered with the right of bargaining
unit employees to decide whether or not to sign the same. The Union
alleges that the phrase at issue implies that the Executive Director
of the Board is requiring the employees to sign the showing. The
Board is careful to maintain strict neutrality in bargaining agent
elections and we have said that a party's use of pre-election propa-
ganda suggesting that the Board favors one option over another in such
elections confuses or misleads the voters and may violate 964(2)(A)
or 964(1)(A). Maine State Employees Ass'n v. State of Maine, MLRB
No. 77-37 and Decision and Order on Objections to Bargaining Agent
Election, slip op. at 9 (Aug. 9, 1977). We find that the phrase at
issue did not create an impression of Board support for the showings
of interest. The first showing stated "[pletition requested by number
7, form 5 - MLRB," immediately above the phrase at issue, making it
clear that the showing was a procedural requirement of the Board
rather than that individual signatures were being "requested" by the
Board or its Executive Director. Second, freedom of choice is
inherent in the petition process as that process is used in municipal,
state, and national elections. When faced with a petition, reasonable
persons know that they are free to sign or to refrain from signing it
as an expression of support or non-support for the proposition
outlined on the petition document. In our view, the nature of the
_______________
2 The use of separate cards signed by the unit employees is a
preferable practice.
-16-
petition process itself obviates any reasonable possibility that the
phrase "as per request" may have unlawfully interfered with the exer-
cise of any statutory right under the Act. We conclude, therefore,
that use of the phrase "as per request" on the two showings of
interest did not violate 964(2)(A) of the Act.
The Union's third contention is that the Employee violated
964(2)(A) by providing a copy of each of the executed showings of
interest to the Employer. The Employee explained that she believed
that paragraph 7 of the petition for election form, promulgated by the
Board and in use at that time, and Rule 2.01 of our Rules and
Procedures required an election petitioner to serve the petition,
including the appended showing of interest, upon both the Employer and
the Union, as the certified bargaining agent. Corroborating her
testimony is the fact that Ms. Maynard also provided a copy of each of
the executed showings of interest to the Union. That fact is con-
sistent with her asserted interpretation of our Rule.
In light of the Employee's testimony, we have reexamined the
language used in paragraph 7 of our petition for election form and we
conclude that the Employee's interpretation thereof is not unreason-
able. To avoid recurrence of the problem raised in this case, we have
amended paragraph 7 of our petition for election form by including the
following sentence therein: "The showing of interest should be sub-
mitted only to the Maine Labor Relations Board," and deleting there-
from the sentence stating, "The proof may be appended as exhibits;
identify same here." While delivery of an executed showing of
interest to the public employer could in some circumstances constitute
unlawful interference with the rights guaranteed by the Act, we are
reluctant to hold that a party, by following a not unreasonable
interpretation of the instructions contained on one of our own forms,
has violated the Act. In the circumstances, the Employee's action did
not violate 964(2)(A) of the Act.
The Union's averments concerning the alleged irregularities on
the face of the petition are totally without merit. Rule 2.01 of our
Rules and Procedures provides, in relevant part, that "[a] petition
for decertification shall be in writing, signed and duly acknowledged
-17-
before a notary public or justice of the peace and shall contain a
declaration by the person signing it under penalty of perjury that its
contents are true and correct to the best of his knowledge and
belief." The acknowledgment requirement was satisfied, in the case of
both of the petitions for decertification elections, by the Petitioner
appearing before a Justice of the Peace, acknowledging her signature
and stating, under the penalty of perjury, that the contents of the
petition were true and correct to the best of her knowledge and
belief. We do not interpret Rule 2.01 as requiring that the petition
be signed in the presence of a Notary Public or a Justice of the
Peace, but merely that the acknowledgment be made before an officer
authorized to administer oaths in this jurisdiction.
The Union suggests that Ms. Maynard's signing the petition for
decertification in her capacity as "Shop Steward" violated
964(2)(A). Since no evidence was presented that the bargaining unit
employees, other than Ms. Maynard and Ms. Pryor, ever saw the peti-
tions in question, we are unable to determine how Ms. Maynard's
calling herself a shop steward therein could have interfered with the
rights of any bargaining unit employee. Second, Ms. Maynard had been
elected as the steward for the secretaries in the unit; she was never
notified that she had been replaced. Despite not being reelected to
the position, she continued to be the only person ever to perform any
of the functions of a shop steward to the secretaries. Her belief
that she was in fact the secretaries' steward was therefore reason-
able, and calling herself that on the petitions for election did not
violate 964(2)(A) of the Act.
The Union's final charge against the Employee is that Ms. Maynard
violated 964(2)(A) by using an exemplar ballot in election propa-
ganda. The election flier at issue is described in paragraphs 28 and
29 of our findings of fact. In Maine State Employees Ass'n v. State
of Maine, supra, at 9, we stated:
We condemn the use of the official ballot with the
accompanying seal of the State of Maine when used in election
propaganda. The use of such official election material, if
altered or added to other material, could confuse or mislead
eligible voters by giving the impression that the Maine Labor
-18-
Relations Board approves of the altered form or additional
material. If a successful party to an election had violated
this rule against the improper use of official election
material, the Board would, upon the filing of a proper
objection, set aside the election and order a new election
be conducted.
However, in this case, the rule was not violated by the
successful party to an election, but by an organization that
was neither a party to the election nor the winner of the
election. To allow an organization which is not the success-
ful party to frustrate the statutory procedures for the
selection of a bargaining agent is unfair. The election
procedures which require, inter alia, a 10% showing of
interest must be safeguarded and the organizations which
have complied with those procedures should not be adversely
affected by the actions of a non-complying organization.
It is therefore the opinion of the Maine Labor Relations
Board that the conduct of Teamsters Local Union #48 was
improper, but not such conduct as sufficient to warrant
setting aside the results of the election in the Institu-
tional Services bargaining unit and the certification of
Council #74, American Federation of State, County and
municipal Employees as the bargaining agent for the
employees in the Institutional Services Bargaining unit.
We are aware that the National Labor Relations Board ("NLRB") formerly
applied the same sort of per se rule that we discussed above. Allied
Electric Products, Inc., 109 NLRB 1270 (1954). In cases where the
prevailing party had used an altered copy of the Board's official
ballot in its election propaganda, the NLRB would set aside the
results of the election. In reversing its former policy, the NLRB
recently stated:
When it is evident that the altered ballot is the work of a
party, rather than the Board, employees are perfectly capable
of judging its persuasive value. We therefore reject the
view that the mere existence of an altered ballot is a per
se violation of the Allied Electric rule, as this approach
results in invalidating elections even when the supposedly
objectionable campaign material is unlikely to mislead any
reasonable voter into believing that the Board supported a
particular party in the election. Accordingly, we adopt the
view expressed by former Member Penello in his dissent in
Saturn Industries, (238 NLRB 896 (1978)], that an altered
ballot that on its face clearly identifies the party respon-
sible for its preparation is not objectionable and will not
serve as the basis for setting aside an election. See also
Best Western Motel, 248 NLRB 1319 fn.3 (1980) (view of Member
Penello). When the party responsible for preparation of the
-19-
altered ballot is clearly identified on the face of the
material itself, employees would know that the document
emanated from a party, not the Board, and thus would not be
led to believe that the party has been endorsed by the Board.
SDC Investment, Inc., 274 NLRB 556, 557 (1985) (footnote omitted);
cited with approval in NLRB v. Rhone-Poulenc, Inc., 789 F.2d 188, 190
(3d Cir. 1986).
We need not opt between a per se rule and the NLRB's current
approach in this case because the exemplar ballot at issue was
markedly different from the Board's official ballot. The exemplar
ballot did not contain the name of the Board, the seal of the State of
Maine, or the words "Official Ballot." The propaganda containing the
exemplar ballot also contained a sentence that read: "The Maine Labor
Board has notified us that the VOTE will take place on Tuesday,
May 27th." The flier, therefore, clearly separates its author(s) from
the Board. Furthermore, the document was signed by four of the
bargaining unit employees, thereby announcing its origins. We hold
that the examplar ballot could not have confused or misled any reaso-
nable voter into believing that the Board favored the decertification
of the bargaining agent; therefore, the use of the examplar ballot in
the election propaganda did not violate 26 M.R.S.A. 964(2)(A).
The Employee's charges against the Union. The Employee,
Ms. Maynard, alleges that the Union violated 26 M.R.S.A. 964(2)(A)
(1974) by: (1) excluding Ms. Maynard from a general membership
meeting of the bargaining unit employees where the first showing of
interest was available for signature and (2) excluding Ms. Maynard
from a meeting of the Union's negotiating committee, a body of which
she was a member. No evidence was presented tending to show that
Ms. Maynard was ever excluded from any general membership meeting of
bargaining unit employees; therefore, the Employee's first charge will
be dismissed.
Prior to the bargaining agent election, Union International
Representative Ferrell asked the local Union president, Ms. Soucy, to
call a meeting of bargaining team members to be held at the
Northeastland Hotel. In requesting the meeting, Mr. Ferrell told
-20-
Ms. Soucy to neither inform nor invite Ms. Maynard and Ms. Pryor to
the meeting, and Ms. Soucy acceded to Mr. Ferrell's request. The sub-
ject of the meeting in question was the decertification petition and
the upcoming bargaining agent election.
We have recognized that a union is "entirely warranted" in
removing a person who has begun circulating a petition for decer-
tification election from the position of shop steward. Teamsters
Local Union No. 48 v. Town of Millinocket, MLRB No. 79-40, slip op. at
5 n.1 (Oct. 11, 1979). Citing Newman v. Local 1101, Communications
Workers of America, 570 F.2d 439 (2d Cir. 1978), we stated that
"[r]emoval of an elected steward who acts in such direct conflict with
the union's interests is permissible." Id. In Bradbury v. Washburn
Teachers Ass'n, MLRB No. 82-08, slip op. at 3 and 5 (Mar. 15, 1982),
we concluded that a union did not violate 964(2)(A) by requesting
that a bargaining unit employee leave a union meeting when the purpose
of the meeting was to discuss the Union's strategy in pursuing a
grievance against the employer for granting special benefits to the
employee. In one instance, the employee refused to leave a meeting
and, rather than continue with the employee present, the meeting was
adjourned. The rationale behind our decisions in Millinocket and in
Bradbury was that, when a bargaining agent and a bargaining unit
employee are in direct conflict with each other over an issue, the
union may exclude the employee from meetings where the union's course
of action in connection with the particular issue will be discussed.
Such exclusion facilitates open and candid discussion of the options
and strategies open to the union, without jeopardizing the union's
position by revealing its strategy and the intricacies of its case to
the opposing party.
At the time of the meeting in question, it had become clear that
Ms. Maynard and Ms. Pryor were the driving forces behind the election
petition and the campaign to decertify the Union. The Union and the
two employees were in direct conflict on this question and the Union
may well have jeopardized its campaign effort by revealing its stra-
tegy and tactics to the pro-decertification forces. We hold, there-
fore, that the Union did not violate 964(2)(A) by excluding
Ms. Maynard from the campaign strategy meeting held at the
-21-
Northeastland Hotel.
Remedies. Having concluded that none of the parties charged in
either of the two prohibited practices complaints or in the coun-
terclaim engaged in any violation of the Act, pursuant to the
authority granted in 26 M.R.S.A. S 968(4) and (5)(C) we will dismiss
the complaints and counterclaim as well as the objection to the
bargaining agent election.
We have also considered the claims by the Employee and the
Employer that they should be awarded counsel fees in this case. The
Employee argues that she is entitled to such an award because, in her
view, the Union's complaint was frivolous and was filed in order to
deter her and other decertification petitioners from filing similar
petitions, in violation of 964(2)(A) of the Act. The Employer
sought an award of its attorney's fees on the ground that the Union's
complaint against it was frivolous. In the past, we have awarded
attorneys' fees in cases where the opposing litigants' defense was
frivolous. Holmes v. Town of Old orchard Beach, MLRB No. 82-14,
Supplemental Decision and Order, slip op. at 12-13 (Aug. 3, 1983);
Washburn Teachers Ass'n v. Barnes, MLRB No. 83-21, slip op. at 11-12
(Aug. 24, 1983). Although we dismiss the Union's objection and
complaints for lack of sufficient proof, the Union presented enough
evidence in support of its allegations to lead us to the conclusion
that its objection and complaints were not frivolous. We therefore
deny the requests for the award of counsel fees herein.
ORDER
On 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. 968(5) (1974 &
Pamph. 1986), it is hereby ORDERED:
1. That the prohibited practices complaint filed by the
American Federation of State, County and municipal
Employees, Council 93, AFL-CIO, on May 21, 1986, in
MLRB Case No. 86-22, is hereby dismissed.
2. That the counterclaim filed by Public Employee Maxine
Maynard, on June 25, 1986, in MLRB Case No. 86-22, is
hereby dismissed.
-22-
3. That the objection to bargaining agent election filed
by the American Federation of State, County and
Municipal Employees, Council 93, AFL-CIO, on May 29,
1986, in MLRB Case No. 86-A-03, is hereby dismissed.
4. That the prohibited practices complaint filed by the
American Federation of State, County and Municipal
Employees, Council 93, AFL-CIO, on June 9, 1986, in
MLRB Case No. 86-25, is hereby dismissed.
5. That the requests for award of counsel fees by
Respondents Maxine Maynard and Maine School Admini-
strative District No. 1 are denied.
Dated at Augusta, Maine, this 10th day of March, 1987.
MAINE LABOR RELATIONS BOARD
/s/________________________________
The parties are hereby Edward S. Godfrey
advised of their right Chairman
pursuant to 26 M.R.S.A.
968(5)(F) (Pamph. 1986)
to seek review of this
decision and order by the /s/________________________________
Superior Court by filing Thacher E. Turner
a complaint in accordance Employer Representative
with Rule 80B of the Rules
of Civil Procedure within
15 days of the date of the
decision. /s/________________________________
George W. Lambertson
Employee Representative
-23-