STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 98-07
Issued: June 12, 1998
__________________________________
)
UNITED PAPERWORKERS )
INTERNATIONAL UNION, )
)
Complainant,) INTERIM ORDER ON
) RESPONDENTS' MOTIONS TO
) DISMISS
V. )
)
AUSTIN J. DECOSTER d/b/a DECOSTER )
EGG FARMS; MAINE CONTRACT FARMING,)
LLC; NORTHERN TRANSPORTATION, LLC;)
TURNER MAINTENANCE AND SERVICES, )
INC.; L&L CLEANING, INC.; and PFS )
LOADING, INC., )
)
Respondents. )
__________________________________)
On October 8, 1997, the Complainant United paperworkers
International Union (hereinafter referred to as "Complainant" or
"Union") drafted a prohibited Practice Complaint to be filed with
the Maine Labor Relations Board ("Board" or "MLRB") and a
substantially identical charge to be filed with the National
Labor Relations Board ("NLRB").
The Prohibited Practice Complaint was received by the Board
on October 9, 1997. Both the complaint and the charge named the
current Respondents as the charged parties, except that PFS
Loading, Inc., was not named in either document and both
documents named Maine Ag, LLC, and Quality Egg of New England,
LLC, as additional Respondents. Joint Exhibit 1 indicates that
the charge mentioned above was filed with the NLRB on October 14,
1997. On October 14, 1997, the Executive Director of the Board
sent a letter to Complainant's attorney, advising him of the
jurisdictional proof of service requirement and noting certain
insufficiencies in the submission received on October 9. The
executive director sent copies of the letter to the attorney for
Respondents A..J. Decoster d/b/a Decoster Egg Farms and Maine
Contract Farming and to the agents for service of process
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registered with the Secretary of State's Office for the other
named Respondents.
On October 16, 1997, the Complainant prepared an amended
charge for filing with the NLRB, adding a discrimination charge
to its original complaint. In response to the notice of
insufficiencies, the Complainant filed an Amended Prohibited
Practice Complaint with the Board on October 29, 1997. This
complaint charged the same conduct against the same Respondents
as the October 9 submission.
On November 20, 1997, the several Respondents filed separate
responses to the prohibited practice complaint. Respondents
Turner Maintenance and Services, Inc.; Northern Transportation,
LLC; and L&L Cleaning, Inc., each filed a separate response.
While the three responses were not all identical, they all
asserted that:
(1) each Respondent is not an "agricultural employer"
within the meaning of the Agricultural Employees Labor
Relations Act ("AELRA"), 26 M.R.S.A. ch. 16, because:
(a) each employs fewer than 100 employees,
much less 100 agricultural employees,
(b) none of the Respondents operates an egg
processing facility that has over 500,000
laying birds, and
(c) respectively, the Respondents are engaged
in the following business pursuits: vehicle
repair and maintenance and property upkeep;
transportation and trucking services; and
industrial cleaning;
(2) the Board's jurisdiction over each Respondent is
preempted by federal labor laws and assertion of
jurisdiction by the Board would violate the supremacy
clause of the Constitution of the United States;
(3) application of AELRA to any of the Respondents
would violate their rights under Article I, 6-A of
the Constitution of Maine and Article XIV of the
Constitution of the United States; and
(4) none of the Respondents promulgated the workplace
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rule which is the subject of the complaint.
Respondents Maine Ag, LLC, and Quality Egg of New England,
LLC, filed a joint response to the complaint. These Respondents
denied the substantive allegations contained in the complaint and
listed the following defenses:
(1) The complaint fails to state a claim upon which
relief may be granted.
(2) The complaint is preempted by the National Labor
Relations Act.
(3) The Board lacks jurisdiction over the Respondents.
(4) The Respondents are not agricultural employers
within the meaning of the AELRA.
(5) The Respondents do not employ agricultural
employees within the meaning of the AELRA.
(6) The AELRA is unconstitutional.
(7) The AELRA violates the Respondents' equal
protection and due process rights.
(8) The AELRA violates the impairment of contracts
clause in the Constitution.
(9) The Respondents' actions were undertaken in good
faith.
Respondents Austin J. Decoster, Decoster Egg Farms and Maine
Contract Farming, LLC, filed a joint response to the complaint
and a motion to dismiss. These Respondents denied the
substantive allegations contained in the complaint and listed the
following defenses:
(1) The complaint fails to state a claim upon which
relief may be granted.
(2) The Board lacks jurisdiction over the Respondents.
(3) The Respondents are not agricultural employers
within the meaning of the AELRA.
(4) The AELRA is unconstitutional.
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(5) The AELRA violates the Respondents' equal
protection and due process rights.
(6) The AELRA violates the impairment of contract
clause in the Constitution.
(7) The Respondents' actions were undertaken in good
faith.
On December 9, 1997, counsel for Respondents Maine Ag and
Quality Egg of New England wrote a letter to counsel for
Complainant, indicating that those companies were not contesting
the National Labor Relations Board's assertion of jurisdiction
over them in the case pending before that agency. On
December 12, 1997, a second amended charge was filed with the
NLRB against Maine Ag and Quality Egg of New England as a joint
employer engaged in an establishment described as "Egg processor"
on the Form NLRB-501. This form lists the Complainant as the
charging party; however, the copy provided to the Board, Joint
Exhibit 3, is not signed by any agent or representative of the
Complainant. On December 17, 1997. the executive director of
this Board granted the motion of Respondents Maine Ag and Quality
Egg to dismiss the complaint as to them, on the grounds that the
NLRB had exercised jurisdiction over those Respondents.
On December 19, 1997, the Board petitioned the NLRB for an
advisory opinion as to whether any of the employees of any of the
remaining Respondents, including PFS Loading, Inc., are exempt
from the coverage of the National Labor Relations Act because
they are agricultural employees within the meaning of 29 U.S.C.
152(3). On February 11, 1998, the Board received the NLRB's
February 4, 1998, Order Denying Petition for Advisory Opinion.
The petition was denied because the relevant NLRB rule
"specifically provides that a petition for Advisory Opinion may
only be filed if the relevant facts are undisputed or the agency
or court has already made the relevant factual findings." The
Board had not made any findings of fact in support of the
petition, and the response filed by Respondent Austin J. Deaoster
d/b/a DeCoster Egg Farms denied various factual allegations made
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by the Complainant.
On January 27, 1998, the Complainant filed a second amended
complaint with the Board, adding PFS Loading, Inc., as a
Respondent and, in addition to restating the allegations
contained in its first amended complaint, charging that the
Respondents "threatened employees with reprisals, promised
benefits, engaged in surveillance" and otherwise interfered with,
restrained or coerced employees in the free exercise of the
rights granted them by the AELRA. In response to an insuf-
ficiency notice from the executive director dated January 30,
1998, a third amended complaint was filed on February 5, 1998.
Respondents Austin J. Decoster, DeCoster Egg Farms and Maine
Contract Farming, LLC, filed a joint response to the second
amended complaint and a motion to dismiss, on February 24, 1998.
These Respondents denied the substantive allegations contained in
the second amended complaint and listed the same defenses as were
mentioned in their original response. The Respondents' motion to
dismiss is based on the following averments: that the NLRB has
exercised jurisdiction over the entities that operate the egg
processing plants located at the former Decoster Egg Farm; that
such plants are operated by companies that are separate and
distinct from any agricultural operations at the facility; that
none of the Respondents operate an egg processing facility and,
therefore, none could be agricultural employers within the
meaning of the AELRA. Second, none of the Respondents employs
more than 100 agricultural employees. On February 25, 1998,
separate responses were filed on behalf of each of the remaining
Respondents. While the responses were not all identical, they
all track the original responses filed by these parties. The
response filed on behalf of PFS Loading, Inc., states that it
engages in the business of transporting pullets.
On January 28, 1998, the Regional Director for NLRB Region I
issued an Order Consolidating Cases, Consolidated Complaint and
Notice of Hearing in Maine Ag. LLC. and Ouplity Egg of New
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England. LLC. Single Employer and United Paperworkers
International Union. AFL-CIO and Kathy Rolfe, Case 1-CA-3568l and
1-CA-35945. On January 30, 1998, counsel for Maine Ag and
Quality Egg of New England served a joint response to the
consolidated complaint upon the NLRB General Counsel and upon
Counsel for the Complainant. On February 25, 1998, a Compliance
Officer for NLRB Region I circulated the parties' Settlement
Agreement in Case l-CA-35681. Joint Exhibit 6. On February 19,
1998, NLRB Regional Director Rosemary Pye approved a Stipulated
Election Agreement pursuant to which the employees of Maine Ag
and Quality Egg would participate in an NLRB-conducted secret
ballot election on March 27, 1998, to determine whether they
wished to be represented by a bargaining agent. Joint Exhibit 7,
The NLRB conducted the bargaining agent election as scheduled.
Joint Exhibit 8. On April 3, 1998, the Complainant filed a
charge with the NLRB alleging that, through several actions,
Maine Ag and Quality Egg, a single employer, had "destroyed the
union's majority status among employees, and has created such a
chilling effect among employees that no free and fair election
can be held" and praying for issuance of a bargaining order.
Joint Exhibit 9.
On February 26, 1998, the executive director conducted a
conference call with counsel in this case. At that time, three
issues relating to the Board's exercise of jurisdiction were
identified: "(i) whether any of the individual respondent
parties 'operate[s] an egg processing facility that has over
500,000 laying birds and that employs more than 100 agricultural
employees' ; (ii) whether two or more of the respondents
constitute a single agricultural employer within the meaning [of]
26 M.R.S.A. 1322(3); and (iii) which, if any, of the persons
employed by the respondent parties are 'agricultural employees'
pursuant to 29 U.S.C. 152(3)." To prepare for the prehearing
conference on the question of jurisdiction, a schedule was
established for the parties to suggest questions relevant to the
development of the evidentiary record and to comment on each
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other's questions. The parties submitted their respective
questions and comments pursuant to the schedule.
The executive director reviewed the parties' submissions and
convened a conference call with counsel on April 9, 1998.
Recognizing that a legal issue raised in the motion to dismiss
filed on behalf of Respondents A. J. DeCoster, et al., on
February 28 might be dispositive on the question of jurisdiction,
the executive director decided that the date of the scheduled
prehearing conference should be used as an oral argument
concerning the legal issue that the Respondents alleged to be
dispositive. To focus such argument, the executive director
posed the following questions to the parties:
What is the effect of the N.L.R.B.'s exercising
jurisdiction over Maine Ag and Quality Egg of New
England upon the ability of the M.L.R.B. to conclude
that any of the Respondents now before the Board are
agricultural employers within the definition of
26 M.R.S.A. 1322(3)?
In particular:
(1) Can the M,L,R.B. count any persons who are
included in the Maine Ag/Quality Egg of New England
bargaining unit in the 100-agricultural employee
threshold; and
(2) Can the M.L.R.B. conclude that the Respondents now
before the Board (or any combination of them, acting as
a single enterprise) operate an egg processing
facility?
The parties presented written argument on these issues through
simultaneous main and reply briefs that have been considered by
the Board. In addition, the parties filed a stipulation of
relevant facts, comprised of 9 joint exhibits.
The Board, consisting of Alternate Chair Kathy M. Hooke,
Alternate Employee Representative Carol Gilmore, and Employer
Representative Karl Dornish, Jr., convened at 9:30 a.m. on
Wednesday, April 29, 1998, in the Labor Board Conference Room,
Room 211-A of the State Office Building in Augusta to receive
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oral argument on these issues. The Complainant was represented
by Jonathan S. R. Beal, Esq. Respondents Austin J. Decoster;
Decoster Egg Farms; and Maine Contract Farming, LLC, were
represented by Timothy J. O'Brien, Esq. Respondents Northern
Transportation, LLC; Turner Maintenance and Services, Inc.; L&L
Cleaning, Inc.; and PFS Loading, Inc., were represented by
Robert S. Frank, Esq.
JURISDICTION
The Maine Labor Relations Board's jurisdiction to consider
whether it has jurisdiction to hear and adjudicate the prohibited
practice complaint in this matter is inherent in the authority
granted to the Board by 26 M.R.S.A. 1329 CSupp. 1997).
FINDINGS OF FACT AND CONCLUSIONS OF LAW
The Respondents have moved to dismiss the complaint because,
among other things, the MLRB does not have jurisdiction to hear
the case. The Respondents each argue that they are not subject
to the AELRA because, as separate entities, none of them are
"agricultural employers" as defined in the Act. The Union
contends that the Respondents operate as a single integrated
enterprise and consequently meet the definitional requirements of
the Act.
Judicial estoppel
The Respondents argue that the Union should be estopped from
asserting the single enterprise theory and further deny that they
are a single enterprise, as the Union alleges. The Respondents
argue that the doctrine of judicial estoppel precludes the Union
from asserting that the various employers here are actually a
single enterprise because a contrary position was successfully
maintained before the NLRB. The assertion contradicting the
single enterprise theory that was allegedly made before the NLRB
was that Maine Ag and Quality Egg is a business that operates
separately and distinctly from any farming operation. This
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contrary position was asserted implicitly, they argue, when the
Union filed charges against the employers with the NLRB and when
the NLRB exercised jurisdiction over Maine Ag and Quality Egg in
response to those charges. The NLRB has no jurisdiction over
agricultural employees.
We do not think judicial estoppel is appropriate in the
present case. Although the Respondents refer to judicial
estoppel as a "well settled rule," they offer no Maine authority
even recognizing the principle, let alone any authority to
support its application in this case. The Maine cases produced
by our research on this specific form of estoppel offer limited
guidance. In Pierce v. Central Maine Power Co., the Law Court
held that the Superior Court did not err in "declining to
exercise the power of judicial estoppel," 622 A.2d 80, 82 (Me.
1993). Application of the doctrine in that case would have
precluded the plaintiff from stating in final argument that the
defendant was solely at fault, a position contrary to the
plaintiff's prior assertion in pleadings and interrogatories that
others were at fault. Brief of Defendant-Appellant Central Maine
Power Company, at 22. (Sept. 18, 1991). We cannot infer from the
Law Court's brief statement in that case an acceptance of the
doctrine of judicial estoppel in general or the appropriateness
of its application here.
The Respondents rely heavily on the decisions of the First
Circuit regarding judicial estoppel to support the application of
the doctrine here. While the First Circuit has developed many of
the parameters governing judicial estoppel[1], it is not a doctrine
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1.The First circuit, like numerous courts and commentators looking
at the subject, recognizes that specific requirements for the
application of the doctrine of judicial estoppel vary considerably
from state to state and among the Federal circuit Courts. Patriot
Cinemas Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir.
1987); Fay v. Federal National Mortgage Assoc., 647 N.E.2d 422, 426
(Mass. 1995). See generally, 18 C. Wright, A. Miller & E. Cooper,
Federal practice and procedure S 4477 (1981) , and Comment, Precluding
Inconsistent Statements: The Doctrine of Judicial Estoppel, 80
Nw.U.L.Rev. 1244 (1986). Indeed, there are some jurisdictions that
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that has been invoked frequently. The general definition of
judicial estoppel used by the First Circuit Court of Appeals is
that it is an equitable doctrine that precludes a party from
asserting a position in one legal proceeding which contradicts a
position it has already asserted in another. Patriot Cinemas
Inc. v. General Cinema Corp., 834 F.2d 208, 212 (1st Cir. 1987).
The First Circuit will consider whether a party is
attempting to gain an unfair advantage by making contradictory
assertions in different proceedings. For example, in Patriot
Cinemas, the federal court applied judicial estoppel to bar the
litigant from pursuing a state antitrust claim because in state
court Patriot, in response to a motion to stay the proceeding,
stated that they would not pursue the state antitrust claim.
834 F.2d at 212. The First Circuit concluded that the reversal
was the sort of "fast and loose" behavior that justifies the
application of judicial estoppel. Id. Similarly, the First
Circuit invoked judicial estoppel to prevent a plaintiff from
pursuing various racketeering and fraud claims because the
plaintiff had obtained Chapter 11 relief based on representations
that no such claims existed. Payless Wholesale Distrib. v.
Alberto Culver, 989 F.2d 570 (1st Cir. 1993). See also, Beddall
v. State Street Bank and Trust Co., 137 F.3d 12, 23 (1st Cir
1998) (party estopped from asserting a position contradictory to
basic premise of the underlying case).
When there is no unfair advantage or dishonesty involved, it
is far less likely that the First Circuit will invoke judicial
estoppel. In Desiardins v. Van Buren Community Hosnital, the
____________
have rejected the doctrine entirely. A concern expressed is that
judicial estoppel may interfere with the court's truth-seeking
function and it is inconsistent with the modern rules of pleading
which allow pleading in the alternative. See generally, Comment,
Raising the Cost of Lying: Rethinking Erie for Judicial Estoppel, 64
U.Chi.L.Rev. 873, 880 (Summer 1997) (citing Konstandinitis v. Chen,
626 F.2d 933, 938 (DC Cir. 1980); Parkinson v. California Co., 233
F.2d 432, 438 Cloth Cir. 1956)).
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plaintiff was attempting to have the Van Buren Hospital District
held liable for the Hospital's debt. The First Circuit refused
to apply judicial estoppel to preclude the hospital from denying
that the hospital and the district were one entity because the
Court could not find any "wrongful self-contradiction, let alone
unfair advantage" gained by the prior contrary assertions made by
the hospital. 37 F.3d 21, 23 (1st Cir. 1994). See UNUM Corp.
and UNUM Life Insurance Company of America v. United States, 886
F.Supp. 150, 160 (D.Me. 1995) (judicial estoppel not appropriate
where no indication of "deliberate dishonesty" amounting to
"playing fast and loose" with the tribunals), aff'd on other
grounds, UNUM Corn. and UNUM Life Insurance CompanY of America V.
United States, 130 F.3d 501 (1st Cir. 1997).
The First Circuit has also stated that the position must be
"inconsistent with" a position "unequivocally asserted" in the
prior proceeding. Brewer v. Madigan, 945 F.2d 449 (1st Cir.
1991) (Refusing to consider the applicability of judicial estoppel
because FmHA position providing for review of evictions by
judicial process was not inconsistent with prior position that
statute could be satisfied by either judicial or administrative
appeals) (citing Revnolds v. Commissioner of Internal Revenue,
861 F.2d 469, 472 (6th Cir. 1988) (Commissioner's prior position
that Mrs. Reynolds realized the capital gain on a particular sale
was glaringly inconsistent with the subsequent position that
Mr. Reynolds realized that gain)) . See also, UUUM, 886 F.Supp.
at 160 (refusing to conclude that assertions on meaning of words
such as "exchange" or "redemption" are inconsistent or
"diametrically opposed" when at the time of the initial
assertions the tax issues were novel and ill-defined) ; U.S. v.
Levasseur, 846 F.2d 786, 794 (1st Cir. 1988) (government's
agreement to waive retrial on open counts if conviction on other
counts affirmed, made in return for stay of that retrial, is not
inconsistent with its institution of RICO charges based on the
very same facts).
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In those jurisdictions where judicial estoppel is
recognized, it tends to be applied cautiously because of its
harsh result of rejecting a litigant's argument regardless of its
merits. UNUM, 886 F.Supp. at 158. Such caution "avoid[s]
impinging on the truth-seeking function of the court." Id. at
160, quoting Teledyne Industries v. N.L.R.B, 911 F.2d 1214, 1218
(6th Cir. 1990). See also, Levasseur, 846 F.2d at 792 (judicial
estoppel is appropriate in "certain constrained circumstances")
We agree that judicial estoppel is an extraordinary measure
that should be applied cautiously.[2] Thus, even if judicial
estoppel were established law in Maine, application of the
principle would be inappropriate in this case because there is
very little evidence that the Union made an unequivocal assertion
before the NLRB that the employers do not operate as a single
enterprise.[3] The employer is asking us to put into the mouths of
the Union the allegations made by the NLRB's General Counsel and
is asking us to read an enormous amount of significance into
certain words used on various NLRB forms.
In the present case, the Respondents' primary argument is
that inherent in the NLRB's exercise of jurisdiction over Maine
Ag and Quality Egg is a finding that Maine Ag and Quality Egg is
an egg processing facility that is separate and distinct from any
farming operations occurring at the North Turner facility. As
discussed below, the independent operation of an egg processing
facility is something the Respondents consider a necessary
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2. It is likely that the Law Court, if it were to endorse the
doctrine of judicial estoppel, would apply it very cautiously. With
respect to a similar principle of estopping a party from denying the
constitutionality of a statute under which that party has derived a
benefit, the Law Court has recently noted that courts should be
"circumspect" in applying that principle. Passamaquoddy Water
District v. Citv & Town. 1998 ME 94, fn.3, quoting Begin v. Town of
Sabattus, 409 A.26 1269, 1274 (Me. 1979). The Law Court would
presumably be "circumspect" in applying judicial estoppel as well.
3. Similarly, there is no evidence of an assertion that no one other
than Maine Ag and Quality Egg operates an egg processing facility.
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element of the AELRA's definition of agricultural employers.
They argue that if the operations formerly known as DeCoster Egg
Farms were truly a single enterprise as the Union now contends,
the NLRB could not have exercised jurisdiction because the egg
processing operation would be considered incidental to the actual
farming operation and therefore exempt from the coverage of the
NLRA.
The Respondents can point to no briefs, no formal pleadings
nor any other written submissions by the Union that make any such
assertion regarding NLRB jurisdiction. The evidence from which
the Respondents would have the Board infer such assertion
consists of various references on NLRB forms that Maine Ag and
Quality Egg is an "egg processor," the stipulated election
agreement stating that Maine Ag and Quality Egg is in the
business of processing eggs, and the description of the
bargaining unit listing the jobs in the egg processing plants.
The employer asks us to draw conclusions based on select words
used in various NLRB forms. We do not feel that extraction of
words from a form constitutes the type of "unequivocal assertion"
required by the judicial estoppel doctrine.[4]
The Respondents argue that the very act of filing a charge
at the NLRB against any or all of the employers by necessity must
be an assertion by the Union that the employers are not a single
enterprise because the NLRB could not take jurisdiction over them
otherwise. We disagree. The act of filing similar claims in a
federal forum and a state forum at the same time, like pleading
in the alternative, is not "playing fast and loose" with the
courts, but is a prudent measure designed to protect the
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4. The Respondents also turn to the amended charge dated 12/12/97
against Maine Ag and Quality Egg alone, rather than all of the
employers. Brief of Respondents Austin J. Decoster, DeCoster Egg
Farms and Maine Contract Fanning, LLC, at 4 (Apr. 20, 1998). We are
reluctant to find this sufficient evidence of the required assertion
for two reasons: the copy we have is incomplete and contains no
signature and we suspect that it was filed after the NLRB decided to
proceed only against Maine Ag and Quality Egg.
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claimant's rights. This is particularly so in the present case
where both the NLRA and the AELRA have a relatively short 6-month
statute of limitations and this action is the first pursuant to
the recently-enacted Maine statute. See, 29 U.S.C. 16-(b),
26 M.R.S.A. 1329(2).
The Respondents also argue that the unfair labor practice
complaint filed against Maine Ag and Quality Egg in which the
specific elements of NLRB jurisdiction are alleged is sufficient
evidence of an assertion by the Union. That complaint, however,
was not filed by the Union but by the NLRB General Counsel.
The General Counsel filed the complaint after conducting an
investigation and determining that there was probable cause that
a violation of the NLRA had occurred. Part of.this investigation
addressed the jurisdictional issue. An unrefuted statement made
by the Union at oral argument in this case was that the NLRB
General Counsel relied entirely on information supplied by the
employers in considering the jurisdictional issue. Transcript of
Oral Argument at 47 (statement of Mr. Beal). Maine Ag and
Quality Egg of New England did not dispute those allegations
related to NLRB jurisdiction. [5]
The Union stated that they have always maintained that
Mr. Decoster operates a single enterprise. At oral argument,
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5.Furthermore, here at the MLRB, Maine Ag and Quality Egg responded
to the Union's prohibited practice complaint with a motion to dismiss
on the grounds that the NLRB had asserted jurisdiction over its
employees. Motion to Dismiss dated Nov. 20, 1997. The Union
responded to this motion to dismiss on December 11, 1997, by stating
that the NLRB had not "asserted jurisdiction," but that the NLRB was
merely conducting an investigation, partly on the jurisdiction issue.
Letter from Mr. Heal to Mr. Ayotte dated Dec. 11, 1997. Maine Ag and
Quality Egg proposed to the Union that they enter into a joint
stipulation that they do not contest NLRB jurisdiction and that the
MLRB should not exercise jurisdiction. Letter from Mr. Somers to
Mr. Heal dated Dec. 9, 19971 and copied to Mr. Ayotte on Dec. 15,
1997. The Union did not respond to this proposal until December 16,
1997, after they were convinced (presumably by some action or state-
ment by the NLRB) that the NLRB had asserted jurisdiction. The Union
did not agree to the stipulation on jurisdiction, stating that it was
unnecessary. Letter from Mr. Heal to Mr. Somers dated Dec. 16, 1997.
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Mr. Beal stated:
[W]e did during the NLRB investigation say Mr. DeCoster
controls the whole thing. That did not preclude the
[NLRB], however, from finding that Maine Ag was a
separate corporation within its jurisdiction. We have
always said that this entire breakup of the farm is a
sham and done purely for the purpose of depriving the
workers of their rights under either act protecting
union activity.
Transcript pp. 31-32.
The assertion contained in the complaint is the assertion of
the General Counsel, not the Union, and it was based on infor-
mation supplied by the employer, which readily submitted to NLRB
jurisdiction. It would be unfair to hold the Union in this case
to an assertion made by another party when the Union has always
maintained its current position.
In light of the extremely scanty evidence of any "unequivoc-
al assertion" made by the Union that was "inconsistent" with its
current position, application of judicial estoppel is inappro-
priate here. We have found no wrongful self-contradiction made
by the Union to obtain an unfair advantage that would justify
estopping the Union from presenting its single enterprise
argument.
Statutory construction issue
The portion of Respondents' motion to dismiss at issue in
this proceeding turns on their averment that the National Labor
Relations Board's exercise of jurisdiction over Maine Ag and
Quality Egg of New England renders it impossible for the Board to
gain jurisdiction over any of the Respondents, individually or
acting as a single enterprise. The Board's jurisdiction is
explicitly limited to those individuals beyond the jurisdiction
of the NLRB. Therefore, we are bound by the NLRB's exercise of
jurisdiction over Maine Ag and Quality Egg employ6es pursuant to
the doctrine of federal preemption. We must, therefore, accept
as conclusive the facts presented to the NLRB upon which they
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based their exercise of jurisdiction.
The facts upon which the NLRB based its exercise of
jurisdiction over Maine Ag and Quality Egg, contained in the
unfair labor practice complaint issued by the NLRB General
Counsel in Maine Ag L.L.C. and Quality Egg of New England.
L.L.C, . Single Employer and United Paperworkers International
Union. AFL-CIO and Kathy Rolfe, Case Nos. l-CA-35681 & -3S945
(NLRB Region 1), were as follows:
2. At all material times, Quality Egg of New
England, L.L.C., herein called Quality Egg, a limited
liability corporation, with an office and place of
business in North Turner, Maine, herein called the
North Turner facilities, has, pursuant to a contract
with Decoster Egg Farms, leased egg processing plants
and related processing equipment from Decoster Egg
Farms and purchased the egg production from Decoster
Egg Farms at the point at which the eggs reach the
processing plants from the hen houses, and has been
engaged in the processing, grading, packaging,
marketing, sale, and distribution of the eggs to its
customers.
3. At all material times, Maine Ag L.L.C., herein
called Maine Ag, a limited liability corporation with
an office and place of business at the North Turner
facilities, has been engaged in the business of
supplying or leasing employees to Quality Egg for
performance of the services necessary for Quality Egg
to carry out its business, as described in paragraph 2.
4. At all material times, Maine Ag and Quality
Egg have been affiliated business enterprises with
common officers, ownership, directors, management, and
supervision; have formulated and administered a common
labor policy; have shared common premises and
facilities; have provided services for and made sales
to each other; have interchanged personnel with each
other; and have held themselves out to the public as
single-integrated business enterprises.
5. Based on their operations described above in
paragraphs 2, 3, and 4, Maine Ag and Quality Egg
constitute a single-integrated business enterprise and
a single employer within the meaning of the Act.
6. The operations of Respondent described above
in paragraphs 2, 3, 4, and 5 are separate and
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independent from agricultural operations and not
performed as incident to, or in conjunction with,
certain farming operations performed by Respondent.
7. The employees of Respondent engaged in its
operations described in paragraphs 2, 3, 4, and 5 are
not "agricultural labor" as defined in Section 2(3) of
the Act and Section 3(f) of the Fair Labor standards
Act, 29 U.S.C. 203(f). [6]
Unfair Labor Practices Complaint at 2-3. Maine Ag and Quality
Egg denied that they constituted a single-integrated business
enterprise and the factual allegations in support of that
averment, and denied that they engaged in any farming operations.
They admitted the balance of the above allegations. The NLRB
subsequently exercised jurisdiction over Maine Ag and Quality Egg
as a joint employer. See, Settlement Agreement in Case No.
l-CA-35684.
The Respondents argue that, as a result of the NLRB's
exercising jurisdiction over Maine Ag and Quality Egg, the Board
cannot, as a matter of law, have jurisdiction over the several
Respondents, individually or together as a single enterprise.
The Respondents base their argument on the second sentence of the
statutory definition of "Agricultural employer" in S 1322(3)
The subsection in question reads as follows:
3. Agricultural employer. "Agricultural employer" or
"employer" means a person or entity who directly or
indirectly engages the services or suffers or permits
the work of an agricultural employee, and includes any
person acting on behalf of an employer directly or
indirectly and any person or entity exercising control
over the terms and conditions of employment.
"Agricultural employer" is limited to a person or
entity operating an egg processing facility that has
over 500,000 laying birds and that employs more than
___________________
6. In light of the allegation contained in this paragraph, that was
admitted by Respondent, and the NLRB's exercise of jurisdiction over
the Maine Ag and Quality Egg employees in both the unfair labor
practice case and the subsequent bargaining agent election, all
parties before the Board in the instant case have agreed that such
employees cannot be included in calculating the "more-than-100-
agricultural-employee" threshold contained in 1322(3) of the AELRA.
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100 agricultural employees as defined in subsection 2.
All parties agree, and the Board concludes, that the first
sentence in the above definition is very broad in scope. The
first sentence must, however, be viewed and construed through the
prism of the second.
The Respondents aver that the second sentence in the
definition of "agricultural employer" sets forth three separate
criteria, all of which must be present in order for the Board to
have jurisdiction over one alleged to be an "agricultural
employer" within the meaning of the AELRA. The three criteria
are: operation of an egg processing facility, possession of over
500,000 laying birds, and employment of over 100 agricultural
employees. Reply brief on behalf of Austin J. Decoster, et al.,
at 4. The Respondents contend that because the NLRB exercised
jurisdiction over the egg processing plants operated by Maine Ag
and Quality Egg and could only do so because the operation of the
egg processing plants was separate and independent from
agricultural operations--the raising, feeding and caring for
laying hens carried on by DeDoster Respondents--one of the three
necessary elements for the Board to take jurisdiction over the
Respondents is missing. It is beyond dispute that raising,
feeding and caring for laying hens are agricultural operations,
Holly Farms Corp. v. National Labor Relations Bd., 517 U.S. 392,
134 L.Ed.2d 593, 116 S.Ct. 1396, 1402 (1996). Because the egg
processing plants were operated independently from the agri-
cultural operations at the North Turner facility, Respondent's
argue none of the Respondents in this case (or in the NLRB case)
could possibly both "operate an egg processing facility" and have
over 500,000 laying birds. Thus, no person or entity could
possibly meet all three criteria in the circumstances in order to
come within the jurisdiction conferred upon the Board by the
AELRA.
The basic premise underlying the Respondents' argument is
that the egg processing plants operated by Maine Ag and Quality
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Egg are the "egg processing facility that has over 500,000 laying
birds" mentioned in the second sentence of subsection 3. It is
clear, however, from the oral argument, Transcript of Oral
Argument at 34-35 (question by Chair Hooke, response by
Mr. O'Brien) , as well as from our review of the briefs in the
case, Main Brief on behalf of Austin J. DeCoster, et al., at 2-3,
that egg processing plants do not have anv laying birds, much
less the half-million birds contemplated by the AELRA. Were we
to adopt the Respondents' position, we would have to effectively
rewrite the second sentence in 1322(3) to read: "Agricultural
employer" is limited to a person or entity that: (1) operates an
egg processing facility; (2) has over 500,000 laying birds; and
(3) employs more than 100 agricultural employees as defined in
subsection 2. Transcript of Oral Argument at 3 (statement of
Mr. O'Brien). The Board has no authority to rewrite statutory
language, particularly when there is a reasonable interpretation
of the provision as written that gives effect to all of its
words. Labbe V. Nissen Cory., 404 A.2d 564, 567 (Me. 1979).
The interpretation of the second sentence urged by the
Respondents is contrary to the structure of the provision. The
Drafting Manual for Nonnartisan Legislative Staff issued by the
Office of the Revisor of Statutes helps in interpreting the
language used within the context of the sentence structure in
which it appears. Section 8 of the Manual, entitled "Relative
pronouns; restrictive and nonrestrictive clauses: that, which
and who," is particularly helpful in the instant case. The
relevant portion of the discussion reads as follows:
B. Restrictive and nonrestrictive clauses.
Although the use of "who" causes little heartache, the
distinction between "that" and "which" eludes many
drafters.
(1) That. Use "that" to introduce restrictive
clauses, that is, clauses upon which the meaning of the
sentence depends; clauses that specifically identify
the subject or object you are describing. These
clauses are not usually set off by commas.
Examples:
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The commissioner shall promulgate rules that
address the concerns identified by this committee.
The Bureau of Public Lands shall acquire the
parcel of land that adjoins Baxter State Park.
Drafting Manual, Part IV pages 43-44. In the context of the
sentence at issue, the words "operating an egg processing
facility" are descriptive of the subject of the sentence "a
person or entity." There is no "that" between the words "entity"
and "operating" to indicate a restrictive clause. Applying the
principle described in the Drafting Manual, the words "that has
over 500,000 laying birds and that employs more than 100
agricultural employees as defined in subsection 2" are both
restrictive clauses as is evident by the use of "that" twice.
Because these clauses immediately follow the words "egg
processing facility," the clauses identify the nature of such
operation, rather than the "person or entity." This interpre-
tation is consistent with the Drafting Manual directive that
modifiers should be placed as close as possible to the words
being modified. Id. Part IV page 22.
The instant case presents us with the first opportunity to
interpret any provision of the AELRA since that law went into
effect on September 19, 1997. In interpreting this or any of the
other statutes entrusted to us to administer, we follow the clear
guidelines for interpreting Maine statutes set out by the Law
Court. First, the Court looks "to the plain meaning of the
statutory language to give effect to legislative intent, and if
the meaning of the statute is clear on its face, then [one] need
not look beyond the words themselves." Bartlett v Town of
Stonington, 1998 ME 50, 707 A.2d 389, 391 (1998), citing Cook v
Lisbon School Committee, 682 A.2d 672, 676 (Me. 1996). When the
words used in statutes are unambiguous and do not lead to
"absurd, inconsistent, unreasonable or illogical results," the
Court will not look beyond the statutory language in construing
its meaning. Department of Human Services v. Monty, 1998 ME 11,
704 A.2d 401, 403 (1998). If, on the other hand, a statute is
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ambiguous, the Court will look to "other indicia of legislative
intent," including the legislative history, principles of
statutory construction, State v. Moulton, 1997 ME 228, 704 A.2d
361, 365 (1997), and the context of the provision at issue within
the general statutory scheme. State V. Spaulding, 1998 ME 29,
707 A.2d 378, 380 (1998).
The Respondents' construction of the second sentence of
1322(3) seems plausible at first blush, suggesting possible
ambiguity in the provision. The Board has examined the language
of the statute, including the punctuation and the conjunctions
used. In this analysis, nothing in the statute has been treated
as surplusage since a reasonable construction "supplying meaning
and force" to all of the words is possible. Labbe, supra, at
567. The Board concludes that the meaning of the statutory
provision is clear and unambiguous.
As noted previously, all parties agree, and the Board
concludes, that the first sentence in the above definition is
very broad in scope, covering virtually anyone who employs even a
single part-time agricultural employee. All parties further
agreed, and the Board holds, that the second sentence was
designed to focus attention on a particular type of agricultural
employer and to limit application of the statute to such
employers.
Having held that egg processing facilities are not identical
with egg processing plants, we must determine what the
Legislature meant by the words "egg processing facility" in the
second sentence of 1322(3). We conclude that the words "egg
processing facility" describe a type of large agricultural
operation--i.e., one having to do with the production and
processing of eggs--rather than referring to the egg processing
plants which may be located at such an operation. This
interpretation gives meaning to all of the words in the sentence
within the context of the sentence's structure.
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This interpretation is consistent with the rather generic
meaning inherent in the word "facility." Black's Law Dictionary
defines "facility" as follows:
Facility. Something that is built or installed to
perform some particular function, but it also means
something that promotes the ease of any action or
course of conduct. Raynor v. American Heritage Life
Ins. Co.. 123 G.App. 247, 180 S.E.2d 248, 250. See
also Facilities.
Black's Law Dictionary 531 (5th ed. 1979). The Law Court has
held that "[u]nless the statute itself reveals a contrary
legislative intent, the plain meaning of the language will
control its interpretation." Town of Orono V. Lapointe, 1997 ME
185, 698 A.2d 1059, 1062 (1997), quoting from Murphy v. Board of
Environmental Protection, 615 A.2d 255, 258 (Me. 1992). In the
instant case, the entire complex that constituted the former
Decoster Egg Farm comprises a facility whose purpose is the
production of marketable eggs.
In addition, this interpretation is consistent with the
known facts and does not lead to an absurd, unreasonable or
illogical result. While egg processing plants do not have any
laying birds, egg processing operations do.
The provision at issue is unambiguous and the Board need not
delve further afield in ascertaining its meaning; however, since
interpreting a newly-enacted statute inherently presents issues
of first impression, the Board also reviewed other indicia of
legislative intent in its analytical process. The legislative
history of the provision supports the construction determined by
the Board.
The first sentence in the definition of "Agricultural
employer" in the bill which ultimately became the AELRA, LD 1654,
LR0771(1), 118th Legislature, First Regular Session - 1997, was
identical to that now in the statute. The second sentence in the
original bill read as follows:
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"Agricultural employer" is limited to those employers
with more than 75 agricultural employees for at least
180 days in the preceding calendar year or those
employers with any agricultural employee on a farm with
more than 1,000 hogs.
This remained the second sentence in the definition of covered
agricultural employers in the version of the bill that reached
the floor of the House of Representatives on May 19, 1997.
Legis. Rec. H-937 (1997). By limiting the applicability of the
bill to agricultural operations with over 75 employees for at
least 180 days or those with over 1,000 hogs, the sponsors of the
legislation were restricting the measure's focus on large
agricultural operations, agribusiness enterprises.
During the floor debate over this version of the bill,
several Representatives expressed concern that, as drafted, the
bill might cover: Broccoli farmers in Aroostook County, Legis.
Rec. H-964 (1997) (statement of Rep. Kneeland) ; potato farmers in
Aroostook County and blueberry and cranberry operations in
Washington County, Legis. Rec. H-964-5 (1997) (statement of Rep.
Layton); and an apple orchard in Androscoggin County, Legis. Rec.
H~966 (1997) (statement of Rep. Nickerson) . One Representative
warned of the impact of the proposal upon Maine agriculture as a
whole. Legis. Rec. H-966-7 (1997) (statement of Rep. McAlevey)
Several days later and in response to these concerns, the House
Chair of the Joint Standing Committee on Labor, Rep. Hatch,
introduced a floor amendment to the bill (House Amendment "B" to
Committee Amendment "A") . This amendment changed the second
sentence of 1322(3) to the language that was ultimately adopted
and changed the title of the bill from "An Act to Allow
Agricultural Workers to Bargain Collectively" to "An Act to
Extend Collective Bargaining Rights to Employees of Large
Industrial Agricultural Operations." Rep. Hatch described the
substance of the amendment as follows:
The amendment changes the bill title. It limits the
application of the bill to egg processing facilities
that have over 500,000 laying birds and that employed
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more than 100 agricultural employees. As far as we
know there is only one facility this would cover.
Legis. Rec. H-1288 (1997) (statement of Rep. Hatch).
Since the AELRA is a remedial statute, its provisions should
be liberally construed in favor of the workers it was designed to
protect, Director, Bur. of Labor Stan. v. Cormier, 527 A.2d 1297,
1300 (Me. 1987), and any exception from its terms must be
narrowly construed. State of Maine and Maine State Employees
Association, No. 82-A-02, 6 NPER 20-14027, Interim Order, slip
op. at 6 (Me.L.R.B. June 2, 1983) (interpreting definitional
section of State Employees Labor Relations Act, 26 M.R.S.A. oh.
9-B); Wirtz v. Ti Ti Peat Humus Co., 373 F.2d 209, 212 (4th Cir.
1967), cert. den., 389 U.S. 834, 19 L.Ed.2d 94, 88 S.Ct. 34.
Finally, our interpretation of the sentence at issue is
consistent with the use of the terms "facility" and "plant" by
the NLRB. In particular, paragraph 2 of the Consolidated
Complaint before the NLRB states that Quality Egg of New England
leases egg processing plants located at the North Turner
facilities and Maine Ag has an office and place of business at
the same facilities.
In conclusion, since the egg processing plants operated by
Maine Ag and Quality Egg are not the "egg processing facility"
mentioned in the statute and since the latter term is merely
descriptive of the type of agricultural operation to whose
employees the Legislature intended to extend collective
bargaining rights, the mere fact that the NLRB has exercised
jurisdiction over the employees of Maine Ag and Quality Egg is
not dispositive herein. Such exercise of jurisdiction does not
preclude us from concluding that, in appropriate circumstances,
we may have jurisdiction over some or all of the Respondents.
Accordingly, the Respondents' motion to dismiss is denied at this
time.
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The single-employer issue
The next step in our inquiry as to whether the Board has
jurisdiction over any of the Respondents is for the latter to
produce evidence in support of the jurisdictional portions of
their respective motions to dismiss. In the instant proceeding,
our inquiry was limited to two questions generated by the
Respondents' averment that the NLRB's exercise of jurisdiction
over the Maine Ag/Quality Egg employees was dispositive on the
jurisdictional issue and precluded the Board's exercise of
jurisdiction over any of the Respondents. Through our response
to the two questions presented, we are not foreclosing the
Respondents from submitting evidence that they would otherwise
have submitted in support of their motions opposing the Board's
exercise of jurisdiction over them.
There are two components to the pending jurisdictional
question, and both may well require the Board to determine
whether a single employer, comprised of two or more of the
Respondents, is involved. Due to the coextensive nature of our
jurisdiction and that of the NLRB in this area and the principle
of federal preemption, the single-employer issue will have an
impact, first, on the determination of the scope of NLRB
jurisdiction and, subsequently, on our jurisdictional
determination in the instant case.
With regard to Respondents Austin J. Decoster d/b/a
Decoster Egg Farms and Maine Contract Farming (hereinafter
referred to as the "DeCoster Respondents") , it is essentially
undisputed that these Respondents engage in agricultural
operations within the meaning of 26 M.R.S.A. 1322(1) and that
these Respondents operate an egg processing facility that has
laying birds. Motion to Dismiss with Incorporated Memorandum of
Law of Respondents Austin J. DeCoster, Decoster Egg Farms and
Maine Contract Farming, LLC, dated November 20, 1997, at page 3,
Transcript of Oral Argument at 4-7 (statement of Mr. O'Brien) -
The DeCoster Respondents have never alleged that they are within
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the jurisdiction of the NLRB; therefore, there is no pending
question concerning NLRB jurisdiction over these parties. The
only remaining issue for the DeCoster Respondents is whether they
are within the jurisdictional criteria established by the AELRA;
i.e., does their North Turner facility have over 500,000 laying
birds and does it employ more than 100 agricultural employees.
Accordingly, these Respondents must produce records establishing
the number of laying birds they have had and their employment
records, from October 29, 1997, (the date of the filing of the
prohibited practice complaint) through the date of the
evidentiary hearing on the matter of Board jurisdiction. The
employment records to be produced for each Respondent employer
shall indicate the names of individual employees and the dates of
hire, the current employment status, the job classification, and
a brief synopsis of duties for each person employed.
The evidence concerning the number of laying birds and the
size of the work force will permit the Board to make a
preliminary determination as to whether the Decoster Respondents
are an agricultural employer within the meaning of the AELRA.
If the Decoster Respondents exceed the numerical thresholds of
both laying birds and agricultural employees, such Respondents
will constitute an agricultural employer; if not, these
Respondents may still be an agricultural employer if application
of the "single-employer" analysis (see below) allows aggregation
of their employees with those of other Respondent(s).
Central to the jurisdictional objection raised by Respondents
Northern Transportation, LLC, Turner Maintenance and Services,
Inc., L&L Cleaning, Inc., and PFS Loading, Inc., (collectively
referred to herein as "the service company Respondents") is the
contention that each of them is independent and distinct from the
DeCoster Respondents--the "single-employer" issue. They argue
that in fact their employees are non-agricultural like the
employees of Maine Ag and Quality Egg of New England, over whom
the NLRB has asserted jurisdiction and that, therefore, the
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Board's jurisdiction is preempted by the NLRA.
Although the NLRA does not contain a definition of
"agricultural employee," the Congress requires the NLRB to apply
the definition of "agriculture" found in the Fair Labor Standards
Act ("FLSA") in determining agricultural employee status. Bud
Antle. Inc. v. Barbosa, 35 F.Bd 1355, 1367 (9th Cir. 1994)
The FLSA definition is as follows:
"Agriculture" includes farming in all its branches and
among other things includes the cultivation and tillage
of the soil, dairying, the production, cultivation,
growing, and harvesting of any agricultural commodities
(including commodities defined as agricultural commodi-
ties in section 1141j (g) of Title 12) , the raising of
livestock, bees, fur-bearing animals, or poultry, and any
practices (including any forestry or lumbering opera-
tions) performed by a farmer or on a farm as an incident
to or in conjunction with such farming operations,
including preparation for market, delivery to storage or
to market or to carriers for transportation to market.
29 United States code 5 203 (f). This provision encompasses
agriculture in both a primary sense (the cultivation, tillage,
growth and harvest of agricultural commodities) and a secondary
sense ("any practices which are performed by a farmer or on a
farm as an incident to or in conjunction with such farming
operations") . Bayside Enterprises v. NLRB, 429 U.S. 298, 300, 50
L.Ed.2d 494, 97 S.Ct. 576, 579-79 (1977).
In the instant case, the work performed by the service
companies' employees is not agricultural in the primary sense,
but would be agricultural in the secondary sense, if at all.
If the service companies' independence is established through
competent evidence, their employees would not be agricultural
employees because they would neither be working for a farmer nor
performing work on a farm. Bud Antle, supra, at 1367. On the
other hand, if any of the service company Respondents and the
DeCoster Respondents together constitute a single employer, that
company's employees would in all likelihood be exempt from the
coverage of the NLRA as agricultural employees because they would
-27-
be performing work for a farmer (the DeCoster Respondents) that
is incidental to the farmer's agricultural operations.
The controlling criteria, used by the NLRB in determining
whether two or more employing entities constitute a single
employer, are: (1) common ownership, (2) interrelation of
operations, (3) common management, and (4) centralized control of
labor relations. Radio & Television Broadcast Technicians, Local
Union 1264 v. Broadcast Serv. of Mobile, Inc., 380 U.S. 255, 256,
13 L.Ed.2d 789, 791, 85 S.Ct. 876, 877 (1965); Penntech Paners.
Inc v. NLRB, 706 F.2d 18, 24-26 (1st Cir. 1983), cert. denied,
464 U.S. 892, 104 S.Ct. 237; Vance v. NLRB, 71 F.3d 486, 490 (4th
Cir. 1995). In order to prevail on their motion, each Respondent
will be required to produce evidence showing the number of
employees they employ, the nature of the work performed by each
employee and where such work is performed as well as evidence
regarding each of the criteria relevant to the single-employer
issue. The NLRB will utilize this information in responding to
the Board's petition for an advisory opinion on the issue of
whether some or all of the service companies' employees are
agricultural employees (see below).
The single-employer issue also affects the outcome of the
service companies' challenge to the Board's jurisdiction based on
the criteria of the AELRA itself. If an individual Respondent
does not have more than 100 agricultural employees but operates
with one or more of the other Respondents as a single employer,
the argicultural employees of both/all such Respondents may be
aggregated to reach the numerical agricultural employee threshold
in the AELRA. We will use the NLRB single-employer analysis in
making this determination.
Once the evidentiary record is complete on the
jurisdictional issues raised by the Respondents' motions to
dismiss, we will make a preliminary determination whether the
Decoster Respondents are an agricultural employer within the
meaning of the AELRA. Secondly, the Board will make findings of
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fact relevant to the "argicultural employees" issue and the
relationships of the several service company Respondents with the
DeCoster Respondents. We will then petition the National Labor
Relations Board for an advisory opinion concerning the status of
each of the service company Respondents' employees under the
National Labor Relations Act, based on the evidentiary record
before the Board. Upon receipt of the advisory opinion, we will
make a final jurisdictional ruling on all of the Respondents.
If the NLRB determines that the employees of one or more of the
service company Respondents are exempt from the coverage of the
NLRA as agricultural employees and if the employer of such exempt
employees is a single employer with the Decoster Respondents, the
Board will aggregate all the employees of such single employer in
determining whether the jurisdictional threshold has been met.
ORDER
The Respondents' motions to dismiss are denied at this time.
The executive director shall, in the normal course of business,
schedule an evidentiary proceeding on the jurisdictional issues
raised by the Respondents' motions to dismiss.
Dated at Augusta, Maine, this 12th day of June, 1998,
MAINE LABOR RELATIONS BOARD
Kathy M. Hooke
Alternate Chair
Karl Dornish, Jr.
Employer Representative
Carol B. Gilmore
Alternate Employee Representative
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