Maine State Employees Association v. City of Lewiston, No. 83-14,
5 NPER 20-14016 (Feb. 23, 1983); rev'd sub nom. Council 74, AFSCME v. Maine
Labor Relations Board, Maine State Employees Association, City of Lewiston,
and Lewiston School Department, No. CV-83-114 (Me. Super. Ct., Ken. Cty.,
June 15, 1983); Board aff'd sub nom., Council 74, AFSCME v. Maine State
Employees Association, 476 A.2d 699 (Me. 1984).

MAINE SUPREME JUDICIAL COURT             Reporter of Decisions
                                         Decision No. 3497
                                         Law Docket No. Ken-83-259




                 Argued:   October 17, 1983
                 Decided:  May 8, 1984



     The Maine State Employees Association (MSEA) appeals
from an order of the Superior Court, Kennebec County, revers-
ing a decision of the Maine Labor Relations Board (MLRB) which
set aside the results of a decertification election and
ordered a new election.  We find the Superior Court erred in
reversing the Board's order and vacate the judgment of the
Superior Court.


     Since 1972, the American Federation of State, County,
and Municipal Employees (AFSCME) represented the employees
of the City of Lewiston and the Lewiston School Department.
In October 1982, the MSEA petitioned the MLRB to hold a de-
certification election pursuant to 26 M.R.S.A.  967(2), at
which the city employees would elect either AFSCME or MSEA
to serve thereafter as their agent in collective bargaining

with their employer.

     MLRB Rule 3.02 required the employer to furnish, in
preparation for this election, the Executive Director of the
Board and both unions with a list of the names and addresses
of employees in the bargaining unit, so that a voting list
could be prepared.  The list which the employer compiled in-
cluded the names of ten employees later determined to be in-
eligible to vote because they had been employed by the city
for less than six months, and thus did not fit the statutory
definition of a "public employee" set forth in 26 M.R.S.A.
 962(6)(F).[fn]1  Prior to the election, AFSCME challenged, pur-
suant to Board Rule 3.06, the ballots of three employees it
believed to be ineligible to vote.  Unchallenged votes were
later found to have been cast by an additional seven ineli-
gible employees.  Nothing in the record shows MSEA, prior to
the election, was aware that ineligible employees were in-
cluded in the list.

     The MLRB conducted the decertification election on
November 22, 1982.  AFSCME won the election, receiving 62

1    26 M.R.S.A.  962(6)(F) (1974) provides:

          6. Public Employee.  "Public employee" means
             any employee of a public employer, except
             any person:

             . . . .
             F. Who has been employed less than 6 months.


votes to MSEA's 53.  After the election, MSEA filed with the
Board a prohibited practices complaint in accordance with
26 M.R.S.A.  968(5)(B),[fn]2 alleging that (1) the employer had
committed a prohibited practice in violation of 26 M.R.S.A.
 964(1)(A)[fn]3 by submitting to the MLRB a voting list includ-
ing the names of probationary employees not eligible to vote
in the election; and (2) AFSCME had committed a prohibited

2    In pertinent part, 26 M.R.S.A.  968(5)(B) (Supp. 1983-
1984), provides:

          Any public employer, any public employee,
          any public employee organization or any
          bargaining agent which believes that any
          person, any public employer, any public
          employee, any public employee organization
          or any bargaining agent has engaged in or
          is engaging in any such prohibited practice
          may file a complaint with the executive di-
          rector of the board stating the charges in
          that regard.

3    26 M.R.S.A.  964(1)(A) (1974) provides:

            1. Public employer prohibitions.  Public
          employers, their representatives and their
          agents are prohibited from:

            A. Interfering with, restraining or coerc-
               ing employees in the exercise or the rights
               guaranteed in section 963.

     Section 963 provides:

            No one shall directly or indirectly inter-
          fere with, intimidate, restrain, coerce or
          discriminate against public employees or a
          group of public employees in the free exer-
          cise of their rights, hereby given, volun-
          tarily to join, form and participate in the
          activities of organizations of their own
          choosing for the purposes of representation
          and collective bargaining, or in the free
          exercise of any other right under this chap-

practice in violation of 26 M.R.S.A.  964(2)(A),[fn]4 by making
misleading statements to employees during the election cam-
paign and by removing from union office two employees who
were leading the MSEA decertification campaign.

     The MLRB subsequently held a hearing at which evidence
was taken on all issues raised in MSEA's complaint.  The
Board's decision and order, dated February 23, 1983, found
the employer had violated 26 M.R.S.A.  964(1)(A) by includ-
ing the names of ineligible employees in the voting list,
and the votes cast by the ineligible employees were suffi-
cient in number to have affected the outcome of the election.
The Board ordered the election set aside and a new election
held.[fn]5  Since the Board viewed this finding as dispositive
of the case, it did not rule on MSEA's charges that AFSCME
had engaged in prohibited practices during the campaign.

4    26 M.R.S.A.  964(2)(A) (1974) provides:

            2. Public employee prohibitions.  Public
          employees, public employee organizations,
          their agents, members and bargaining agents
          are prohibited from:

            A. Interfering with, restraining or coerc-
            ing employees in the exercise of the rights
            guaranteed in section 963 or a public em-
            ployer in the selection of his representa-
            tive for purposes of collective bargaining
            or the adjustment of grievances.

5    Pursuant to the Board's February 23 order, a second elec-
tion was held on March 18, 1983.  MSEA won this election by a
vote of 63 to 53.

     On March 8, 1983, AFSCME sought review of the Board's
decision, as provided for in 26 M.R.S.A.  968(5)(F), by fil-
ing a complaint in the Superior Court pursuant to M.R. Civ.
P. 80C.  AFSCME's complaint did not challenge the Board's
findings that ineligible employees were included in the
voting list, or that their votes might have affected the out-
come of the election; AFSCME contended only that the Board
erred as a matter of law by permitting MSEA to file a post-
election challenge to voter eligibility.  On June 15, 1983,
the Superior Court reversed the decision of the MLRB and re-
manded the case to the Board for findings on the previously
undecided issue of AFSCME's alleged prohibited practices.
The MLRB has not acted on this remand order.

     MSEA appealed the Superior Court's decision, asking us
to assert appellate jurisdiction over the case, pursuant to
26 M.R.S.A.  968(5)(F).  Thereafter, AFSCME brought a motion
to dismiss the appeal on the ground that a final judgment had
not been rendered by the Superior Court.  We ordered the
parties to brief and argue the final judgment issue in con-
junction with the merits of the appeal.


     The Superior Court, having decided that the Board could
not properly hear MSEA's post-election challenges to voter
eligibility, remanded the case to the Board for findings on


the issue of the prohibited practices allegations against
AFSCME.  AFSCME contends that our "final judgment rule" pre-
cludes our present review of the Superior Court's decision.

     We have previously noted that this court "will decline
to review a case before it 'unless the appeal is from a
"final judgment," except when otherwise specifically author-
ized.'"  Maine Central Railroad Co. v. Bangor & Aroostook
Railroad Co., 395 A.2d 1107, 1112 (Me. 1978), quoting North-
east Investment Co. v. Leisure Living Communities, Inc., 351
A.2d 845, 848 (Me. 1976).  In the present case, we find the
appeal to be specifically authorized by statute.

     Title 26 M.R.S.A.  968(5)(F) (Supp. 1983-1984) creates
the mechanism for judicial review of MLRB decisions on pro-
hibited practices complaints.  In pertinent part, section
968(5)(F) provides:  "Any appeal [from a Superior Court order
enforcing, modifying, enforcing as so modified or setting
aside in whole or in part the decision of the board on a pro-
hibited practices complaint] to the law court shall be the
same as an appeal from an interlocutory order under section
6."  Section 6 provides:

            Any party may appeal to the law court
          from an interlocutory order granting or
          denying a preliminary injunction in a case
          involving or growing out of a labor dis-
          pute . . . .  The law court shall affirm,
          modify or set aside the order with the
          greatest possible expedition and shall
          give such proceedings precedence over all
          other matters, except older matters of the
          same character.
26 M.R.S.A.  6 (1974).

     AFSCME argues that the incorporation of section 6 into
section 968(5)(F) contemplates an adoption only of the ex-
pedited appellate procedure described in section 6, once the
Board has resolved all issues and they have been finally re-
viewed by the Superior Court.  MSEA contends that section
968(5)(F) allows this court to review, in the manner provided
in section 6, all Superior Court decisions on prohibited
practices complaints even where, as here, unresolved issues
remain for the Board's determination.

     A review of the legislative history of section 968 re-
veals an apparent legislative intent to expedite judicial re-
view of MLRB decisions.  From 1969, when section 968 was
first enacted, until 1971, decisions of the Commissioner of
Labor and Industry were reviewable by the Superior Court, and
ultimately by the Law Court, in the manner specified in sec-
tion 972.  Section 972 gave the Superior Court the authority
to "affirm, reverse or modify any . . . binding determination
or decision [of the commissioner] based upon an erroneous
ruling or finding of law," and allowed for appeal to the Law
Court "as in any civil action."

     In 1971, the legislature created a special procedure for
appellate review of decisions on prohibited practices com-
plaints brought under section 968(5).  P.L. 1971, ch. 609,
 9 repealed and replaced section 968, retaining the parties'

right to appeal as provided in section 972 "as in any civil
action" for grievances brought in unit determination and
election disputes, but creating a different method of appeal
to the Law Court for prohibited practices cases, "the same as
in appeals in actions in which equitable relief is sought and
the law court may, after consideration, reverse or modify any
decree . . . made by a [Superior Court] justice based upon
erroneous ruling or finding of law."

     In 1973, the legislature repealed and replaced section
968(5)(F) in An Act to Clarify and Improve the Enforcement
of Decisions of the Public Employees Labor Relations Board.
P.L. 1973, ch. 533,  2.  The new statute expedites each
step of the appellate process for prohibited practices com-
plaints.  Appeal to the Law Court is directed to be "the
same as an appeal from an interlocutory order under section

     In the 1973 revision of section 968(5)(F), we discern a
legislative intent to facilitate and hasten the resolution of
prohibited practices cases by giving this court an avenue for
early adjudication of disputed issues.  In Sanford Highway
Unit of Local 481 v. Town of Sanford, 411 A.2d 1010, 1014
(Me. 1980), we recognized:

          The Legislature has devoted considerable
          time and energy to the subject of public
          employee labor relations in the past decade
          and has enacted a comprehensive and inte-
          grated set of statutes to establish Maine's

          public policy in the field of governmental
          employee relations.  The speedy procedures
          for judicial review under  968(5)(F) . . .
          are crucial to the maintenance of stability
          and harmony in public employee relations,
          particularly when, as under the Maine stat-
          utes, self-help remedies for the parties are
          very limited, or prohibited.

See also Sanford Teachers Association v. Sanford School Com-
mittee, 409 A.2d 244, 246 (Me. 1979).

     In accord with this legislative intent, we address the
merits of this appeal, and review the issue presented to the

     In its Rule 80C complaint, AFSCME alleged the Board had
erred as a matter of law by allowing MSEA to make a post-
election challenge to the eligibility of voters.  The Supe-
rior Court, apparently accepting AFSCME's characterization
of the case, held that Rule 3.06[fn]6 required each party to the
election to review the list furnished by the employer for
accuracy as to the eligibility of voters and, absent suppres-
sion of facts by AFSCME concerning voter eligibility, the
election could not be challenged by MSEA.  In fact, the Supe-
rior Court misconceived the nature of the case presented
to the Board.  MSEA's complaint did not purport to chal-
lenge the ballots of individual voters.  Rather, it contended

6    MLRB Rule 3.06(A) deals with challenges of any prospec-
tive voters.


the employer had committed a prohibited practice by violat-
ing Rule 3.02(B) of the Board's election rules requiring the
employer to provide accurate voting lists prior to the elec-
tion.[fn]7  The Superior Court's decision, therefore, does not
address the question whether the Board erred in its disposi-
tion of MSEA's prohibited practice complaint.  It is proper
for this court, however, to review the decision of the MLRB
rather than of the Superior Court which was acting in di-
rect review of the action of the Board.  City of Bangor v.

7    In pertinent part, Rule 3.02 provides:

          Voter Eligibility and Eligibility List.
          (A) The employees eligible to vote shall
          be those who were employed on the last pay
          date prior to the filing of the petition
          and who remain on the payroll on the date
          of the election, and meet the requirements
          set forth in Title 26, M.R.S.A.,  962,
           6, defining "public employee" . . . .
          (B) At least ten (10) working days prior
          to the election or mailing of ballots, the
          employer shall furnish, to each labor organ-
          ization which is a party to the proceeding
          and to the Executive Director, a list of 
          the names and addresses of the employees in
          the appropriate unit who are on the payroll
          on the pay period prior to the setting of
          the election by the Executive Director and
          who are also on the payroll at the time of
          the submission of the list.

     Rule 3.02(B) is a codification of the National Labor Re-
lations Board's Excelsior rule.  Excelsior Underwear Inc.,
156 N.L.R.B. 1236 (1966).  The validity of the Excelsior
rule and the power of the NLRB to enforce it have been up-
held by the United States Supreme Court.  NLRB v. Wyman-
Gordon Co., 394 U.S. 759 (1969).


American Federation of State, County, and Municipal Employees,
Council 74, 449 A.2d 1129, 1133-34 (Me. 1982); Driscoll v.
Gheewalla, 441 A.2d 1023, 1026 (Me. 1982).

     The prohibited practice complaint filed by MSEA with
the Board pursuant to section 968(5)(F), alleged:

            The employers failed to provide proper
          lists of employees in the appropriate bar-
          gaining unit and therefore eligible to vote
          as required under MLRB Rule 3.02(B), in that
          the lists provided included a substantial
          number of employees who on November 22, 1982
          had been employed by the employers for less
          than 6 months and who were therefore not in
          the appropriate bargaining unit and were in-
          eligible to vote.  The number of such employ-
          ees who voted was sufficient to affect the
          outcome of the election.  The employers
          thereby impermissibly interfered with the
          laboratory conditions of the election in
          violation of Section 964(1)(A) of the MPELRA.
     In its decision, the Board recognized that its Rule
3.02(B) imposes on employers an obligation to furnish voting
lists of bargaining unit employees prior to the election.
After consideration of the evidence presented at the hearing,
the Board found:  "By including a sufficient number of non-
bargaining unit employees on the lists to affect the outcome
of the election, contrary to the rule that only bargaining
unit employees be included in the lists, the City did not
substantially comply with Rule 3.02(B)."  The Board con-

cluded such lack of compliance with the rule also violated
section 963, which guarantees the right of public employees
to join labor organizations, and section 964(1)(A), which
prohibits public employers from "interfering with, restrain-
ing or coercing employees in the exercise of the rights
guaranteed in Section 963."  AFSCME has not contested, either
in the Superior Court or in this court, the Board's finding
that the employer committed a prohibited practice.

     After the Board determined the employer had violated
section 964(1)(A), it ordered the November 22 election re-
sults to be set aside and a new election held.  We find the
Board's decision to order a new election was within its
statutory authority to take "affirmative action" to effec-
tuate the policies of the labor relations law when it found
the employer to have committed a prohibited practice.  26
M.R.S.A.  968(5)(C).  "The Board has broad discretion in
fashioning appropriate relief for the employer's prohibited
practices . . . ."  City of Bangor, 449 A.2d at 1136.  "A
properly designed remedial order seeks 'a restoration of the
situation, as nearly as possible, to that which would have
obtained' but for the unfair labor practice."  Caribou School
Department v. Caribou Teachers Association, 402 A.2d 1279,
1284 (Me. 1979), quoting Phelps Dodge Corp. v. NLRB, 313 U.S.
177, 194 (1941).


     In M.S.A.D. No. 43 Teachers' Association v. M.S.A.D.
No. 43 Board of Directors, 432 A.2d 395, 398 (Me. 1981), we

          Once the Board finds a challenged practice
          to be prohibited, the determination of what
          affirmative relief, if any, will effectuate
          the policies of our labor relations law is,
          in the first instance, committed to the in-
          formed discretion of the Board. . . .  It
          is not for us to interfere with the remedy
          chosen by the Board where the reasons artic-
          ulated for it in the Board's decision clear-
          ly show it to be within the statutory powers
          of the Board.

In the present case we discern no abuse of discretion in the
Board's exercise of its statutory authority under section
968(5)(C).  Therefore, we affirm the Board's decision set-
ting aside the November 22 election results and ordering a
new election.

     The entry is:

                              Judgment vacated.

                              Remanded to the Superior Court
                              for entry of judgment affirm-
                              ing the decision of the Maine
                              Labor Relations Board.
All concurring.