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 -1- 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 -2- 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. -3- (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 -4- 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 -5- 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 -6- 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 -7- 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 -8- 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 ______________ 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 -9- 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)). -10- 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). -11- 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 ______________ 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. -12- 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 ___________ 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. -13- 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, ____________ 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. -14- 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 -15- 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 -16- 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. -17- 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 -18- 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: -19- 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 -20- 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. -21- 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: -22- "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 -23- 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. -24- 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 -25- 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 -26- 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 -28- 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 -29-