Maine State Employees Association, Local 1989, SEIU v. Maine Veterans' Homes, No. 95-16, Decision and Order on Motion to Stay (Sept. 21, 1995); Decision and Order on Motion for Reconsideration (Oct. 10, 1995); Interim Order on Jurisdiction (Jan. 4, 1996); appeal docketed but dismissed by appellant sub nom Maine Veterans' Homes v. Maine Labor Relations Board, Marc P. Ayotte as Executive Director, and Maine State Employees Association, Local 1989, SEIU, No. CV-96-39 (Me. Super. Ct., Ken. Cty., Mar. 25, 1996). STATE OF MAINE MAINE LABOR RELATIONS BOARD Bargaining Agent Election Case No. 95-16 Issued: September 21, 1995 _____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Petitioner, ) ) and ) ) MAINE VETERANS' HOMES, ) ) Employer. ) _____________________________________) DECISION AND ORDER ) ON MOTION TO STAY MAINE STATE EMPLOYEES ASSOCIATION, ) PROCEEDINGS LOCAL 1989, SEIU, ) ) Complainant, ) ) v. ) ) MAINE VETERANS' HOMES, ) ) Respondent. ) _____________________________________) The Maine State Employees Association (MSEA) filed a prohibited practice complaint against the Maine Veterans' Homes (Employer) with the Maine Labor Relations Board (MLRB) on May 25, 1995. The MSEA subsequently filed a petition for unit determination with the MLRB on June 7, 1995. Representational petitions were also filed by both parties with the National Labor Relations Board (NLRB). Between June 22 and June 29, 1995, a hearing officer of the NLRB conducted hearings relating to those petitions. The parties agreed to stay the proceedings before the MLRB pending the outcome of the hearing before the NLRB. On August 11, 1995, the Regional Director of the First Region of the NLRB dismissed the pending petitions. The Regional -1- Director affirmed the hearing officer's determination that the Employer is a political subdivision of the State of Maine and is, therefore, exempt from the coverage of the National Labor Relations Act. The Employer has appealed that decision. The Employer filed this Motion To Stay Proceedings on August 12, 1995. The Employer contends that the MLRB is without jurisdiction or authority to process either the petition for unit determination or the prohibited practice complaint. The Employer contends that the MLRB should suspend all further processing of these matters, including a hearing on the issue of our jurisdic- tion, pending a final determination by the NLRB. We disagree. We will first address the issue of the pending election. The Board considers Attorney Bennett's August 29, 1995 correspondence to the Executive Director to be an unequivocal agreement to proceed with the election without waiving the Employer's jurisdictional objection. The Notice of Election indicates quite clearly to employees that the Employer has raised the jurisdictional issue and that the results of the election may be affected by the NLRB's final determination. For these reasons, we deny the Employer's Motion to Stay as it pertains to the conduct of the election. We also conclude that we have the authority to require the parties to appear before this Board to present evidence and oral argument as to the jurisdictional issue. We are persuaded that International Longshoremen's Association v. Davis, 476 U.S. 380, 90 L.Ed.2d 389, 106 S.Ct. 1904 (1986), authorizes this Board to proceed to determine whether we have jurisdiction in the matters before us. We order the Executive Director to schedule a hearing before the full Board in the normal course of business so that the parties may present evidence and oral argument on the -2- jurisdictional issue. The previously scheduled pre-hearing conference is continued pending the outcome of the hearing on jurisdiction. Issued at Augusta, Maine, this 21st day of September, 1995. MAINE LABOR RELATIONS BOARD /s/_______________________________ Kathy M. Hooke Alternate Neutral Chair /s/_______________________________ Karl Dornish, Jr. Alternate Employer Representative /s/_______________________________ Wayne W. Whitney Alternate Employee Representative -3- STATE OF MAINE MAINE LABOR RELATIONS BOARD Bargaining Agent Election Case No. 95-16 Issued: October 10, 1995 ____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) ) Petitioner, ) ) and ) ) MAINE VETERANS' HOMES, ) ) Employer. ) DECISION AND ORDER ____________________________________) ON MOTION FOR ) RECONSIDERATION MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Complainant, ) ) v. ) ) MAINE VETERANS' HOMES, ) ) Respondent. ) ____________________________________) On September 25, 1995, the Maine Veterans' Homes filed a Motion For Reconsideration of the Board's denial of the employer's Motion to Stay the election now scheduled for September 28, 1995. Included in the motion was an alternative request that the Board impound the ballots and not count them until the pending jurisdictional issue has been resolved by the National Labor Relations Board. The Board members who participated in the original decision agreed to reconsider the matter and convened by teleconference on September 26, 1995, after reviewing the pleadings filed by both parties. We will first address the motion to stay the election. We are not persuaded by the employer's contention, raised for the first time, that the conduct of an election by this Board will -1- destroy the laboratory conditions of an election which may or may not be conducted by the National Labor Relations Board at some point in the future. While the employer waves the "laboratory conditions" flag, it fails to articulate any specific rationale for application of this doctrine in this instance. We fail to see how this Board's conduct of an election on September 28, 1995, will "render improbable [the] free choice," General Shoe Corp., 77 NLRB 124, 127 (1948), of the Veterans' Homes' employees should the National Labor Relations Board eventually conduct an election. We denied the previous motion to stay based on the employer's unequivocal agreement to proceed with an election found in Attorney Bennett's August 29, 1995, correspondence to the executive director. The executive director, reasonably relying on that agreement, issued notices of the election to the Veterans' Homes' employees. The notices clearly indicate that the Board is proceeding based on the agreement of the employer to conduct the election despite the pending jurisdictional debate. The employees have a reasonable expectation that the election will be conducted as scheduled. We have serious concerns about the effect on laboratory conditions of any future election if we were to cancel the election at this late date based on the employer's apparent change of heart. We cannot permit the employer to renege on its agreement under these circumstances without seriously weakening the entire process we are obligated to enforce. For these reasons and those set forth in our original decision, we deny the employer's Motion to Stay as it pertains to the conduct of the election. We consider the employer's request for impoundment of ballots to be an appeal of the executive director's decision issued orally on September 22, 1995. We affirm the executive director's decision to count the ballots at the close of the polls, prepare a -2- report of the result of the election and serve the report upon the parties upon the conclusion of the election. Rule 3.09(A). We consider the tally of votes to be part and parcel of the normal election procedure. We find that the employer's agreement to the conduct of the election included a waiver of any challenges to the normal election process. On the other hand, Section 3.13 of the Board's Election Rules permits a delay in the certification of the results of the election following the conduct of an election. The executive director's decision to delay certification of the election until this Board issues a decision on the jurisdictional question is a reasonable course of action under these unusual circumstances and we affirm his decision accordingly. Dated at Augusta, Maine this 10th day of October, 1995. MAINE LABOR RELATIONS BOARD /s/______________________________ Kathy M. Hooke Alternate Neutral Chair /s/______________________________ Karl Dornish, Jr Alternate Employer Representative /s/______________________________ Wayne W. Whitney Alternate Employee Representative -3- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 95-16 Issued: January 4, 1996 ___________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Petitioner, ) ) INTERIM ORDER v. ) ON JURISDICTION ) MAINE VETERANS' HOMES, ) ) Respondent. ) ) ___________________________________) The Maine Veterans' Homes (hereinafter "the employer" or "MVH") challenges the jurisdiction of the Maine Labor Relations Board ("Board"), contending it is not a "public employer" as defined by the Municipal Public Employees Labor Relations Law (MPELRL). 26 M.R.S.A. 962(7)(B).[fn1] There are several prohibited practice complaints and an election appeal now pending before this Board.[fn2] The Board has held all matters in abeyance pending the decision of the National Labor Relations Board (NLRE) as to their jurisdiction over this employer.[fn3] The Regional Director of the NLRB issued a Decision _______________ 1 The parties are in agreement that the employer does not meet the definition of public employer found in Section 962(7)(A), and that the employer is not covered by any other state or federal collective bargaining law. 2 The Board conducted an election on September 28, 1995, because the employer had agreed on an appropriate bargaining unit and agreed to proceed with the election without waiving its jurisdictional objection. See M.S.E.A. and Maine Veterans' Homes, Case No. 95-16, Decision and Order on Motion to Stay Proceedings (MLRB, Sept. 21, 1995). 3 The employer has consistently maintained that the NLRB has jurisdiction because MVH is not a "political subdivision" of the state. Section 2(2) of the National Labor Relations Act exempts from coverage any employer found to be a political subdivision of any state. The term "political subdivision" is not defined in -1- and Order on August 11, 1995, which concluded that the employer is a political subdivision of the state and, accordingly, not subject to the jurisdiction of the NLRB. The employer requested a review of the Regional Director's decision by the NLRB. The employer's request for review was denied by the NLRB on September 28, 1995. This denial constitutes final agency action on the part of the NLRB. The parties agreed to be bound by the evidentiary record developed before the NLRB for purposes of this interlocutory decision. Both parties submitted briefs on this jurisdictional issue and the Board heard oral argument on November 29, 1995. Petitioner is represented by Timothy Belcher, Chief Counsel of Maine State Employees Association ("MSEA") and Respondent is represented by Raymond Pascucci, Esq., both of whom appeared before the Board at oral argument. As a preliminary matter, we do not agree with MSEA's contention that the doctrines of res judicata or collateral estoppel bar our consideration of the matter before us. The employer does not seek to challenge NLRB's determination of its own jurisdiction. Likewise, the NLRB did not issue a final judgment as to whether this employer is a public employer under the MPELRL, nor is it a competent tribunal to decide the latter question. While we are guided by decisions issued under the National Labor Relations Act which interpret parallel sections of Maine law, Baker Bus Service v. Keith, 428 A.2d 55, 56 n.3 (Me. 1981), the NLRB's decisions are not controlling on this Board. The Board has not had occasion to consider the scope of the term "public employer" under the MPELRL since the Legislature _______________ the Act; however, the NLRB has limited the exemption to entities that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who are responsible to public officials or to the general electorate. NLRB v. Natural Gas Utility District, 402 U.S. 600, 604-605 (1971). -2- amended this section in 1991. There is no legislative record of discussion of the amendment which would assist us in this effort. We consider the "Statement of Fact" in L.D. 828 to evidence an intent that the amendment be construed so as to be inclusive rather than exclusive.[fn4] Our analysis of this matter turns on the following statutory definition of public employer: "Public employer" means . . . B. Any employer not covered by any other state or federal collective bargaining law that is: (1) Established directly by the State or a political subdivision to constitute a department or administrative office of government; or (2) Administered by individuals responsible to public officials or to the general electorate. 26 M.R.S.A. 962(7)(B). As mentioned in footnote 1, the parties are in agreement that this employer is not covered by any other state or federal collective bargaining law. Both parties presented evidence which supports their respective positions under the first prong of the test. We are not persuaded that, on balance, the evidence compels a conclusion one way or the other under the first prong. This is not uncommon in jurisdictional challenges based on this prong of the "political subdivision" exemption. See NLRB v. Kemmerer Village, Inc., 907 F.2d 661, 662-663 (7th Cir. 1990)(It is not always clear whether one is dealing with a private agency or a political subdivision because agencies do not always "come with labels clearly affixed."). We do not need to make a determination in this regard, however, _______________ 4 The Statement of Fact reads, in its entirety: "This bill extends collective bargaining rights to all public employees in the State currently excluded from the coverage of state and federal labor laws." We recognize that the statement does nothing to clarify the definition of public employer; however, it does evidence an intent to broaden, rather than restrict, the scope of MPELRL's coverage. -3- because we believe the employer clearly meets the second prong of the test. The following undisputed evidence supports our conclusion that the Maine Veterans' Homes is administered by individuals responsible to public officials and is, accordingly, a public employer subject to this Board's jurisdiction under the MPELRL. Title 37-B M.R.S.A. 603 clearly vests the duty of administering the homes in the Board of Trustees. Section 604 requires the Board to adopt rules necessary to administer the homes, and Section 606 completely restricts the authority of the titular administrator(s) to administer the homes "in accordance with the rules, guidelines and general policies established by the board." We conclude that the Board of Trustees administers the homes and, as explained below, they are responsible to public officials, namely, the Governor and the Legislature. The composition of the Board of Trustees is established by the Legislature in Section 603; it is not a self-perpetuating board as is typically the case in the private sector. See Truman Medical Center, Inc. v. NLRB, 641 F.2d 570 (8th Cir. 1981)(Center is not a political subdivision because it is administered by a self-perpetuating board of directors, the majority of whom are neither appointed by nor subject to removal by public officials.); NLRB v. Hiqhview, Inc., 590 F.2d 174 (5th Cir. 1979)(Where the structure of the organization is such that the corporate directors are self-perpetuating and are not directly responsible to the public officials of the county the organization is not a political subdivision.). The Governor directly appoints nine of the ten members of the Board of Trustees to staggered three-year terms.[fn5] In the event of a vacancy, the Governor must appoint a successor to complete the unexpired term. Each trustee continues to hold office until a _______________ 5 The tenth member is the Supervisor of the Division of Veterans' Services, ex officio, who serves without term. -4- successor is appointed and "qualified."[fn6] The board members are personally accountable to the Governor because the Governor is, in effect, their hiring authority. The employer contends that the term "responsible to" necessarily implicates the power to remove, and since there is no evidence that any board member has been removed mid-term by the Governor, we must conclude that the board members are not "responsible to" the Governor. We disagree. The lack of a specific example of the Governor's mid-term removal power does not lead us to conclude that the Governor lacks the power to remove a board member in the event of mid-term malfeasance.[fn7] The bylaws of the MVH do not contain any self policing provisions for removal of members of the board who are not performing their duties; therefore, it is reasonable to conclude that the power to remove a Board member mid-term lies in the appointing authority. Moreover, it is undisputed that the Governor has the power to remove board members at the end of their terms. In any event, the cases decided under the National Labor Relations Act, cited by the petitioner in its brief at 6-7, support the conclusion that lack of evidence of removal power _____________ 7 We conclude from this section that all board members must be "qualified" in the sense of the term as it appears in 5 M.R.S.A. 6. ("All public officers appointed or renewed in accordance with law shall, within 30 days after being commissioned, qualify to perform the duties of their office and the certificate of qualification must be filed in the office of the Secretary of State."(emphasis added)). If we were to conclude, as we are urged to do by the employer, that the Chief Executive Officer and/or titular administrators of MVH administer the homes, we could conclude that they are responsible to public officials, namely, the Board members, in light of this section. 8 In fact, there is uncontroverted testimony that board members are sworn into office by a dedimus justice. Tr. at 33. It is more likely than not that the oath taken by the board members is the oath prescribed by the Maine Constitution, Article IX, Section 1, and that the Governor's removal powers set forth in Article IX, Section 5 apply to the MVH board members. See the discussion infra in footnote 6. -5- does not lead inexorably to the conclusion that individuals are not "responsible to" the public officials who appointed them. Further indicia of the Board's responsibility to the Governor is the annual reporting requirement set forth in 37-B M.R.S.A. 611. We agree with the petitioner that the employer's failure to comply with this statutory requirement should not "allow them to privatize themselves." The employer's organizational structure as indicated in the chart labelled "Maine Veterans' Homes Governance Structure" (marked as NLRB Exhibit U-7) is additional evidence that the Board of Trustees is responsible to the Governor. If board members are only responsible to themselves, as counsel contends, the Governor would not appear at all on the chart, let alone in the space immediately above and connected to them. The Board of Trustees is also responsible to the Legislature. The Board of Trustees is listed in Title 5, Chapter 379, "Boards, Commissions, Committees and Similar Organizations" under the sub-heading "General Government". The purpose of this chapter is to provide the State with a complete inventory of such organizations established by the Legislature "as a means of reducing duplication and making the most efficient use of these organizations." 5 M.R.S.A. 12001. The chapter sets forth provisions for payment of expenses incurred in the performance of duties as a member of one of the Boards listed, and for compensation. The General Government section enumerates the powers vested in those organizations by the Legislature. We conclude that the Board of Trustees' listing in this section of the statute and the powers conferred here, as well as in the enabling statute, are indicative of its responsibility to the Legislature. Finally, the regulation of the MVH's funds found in Sections 609 and 610 is evidence of the intended accountability of the Board of Trustees to the Legislature. -6- Contrary to the employer's contention, we do not find that the legislative record demonstrates an obvious legislative intent that these employees not be subject to state labor laws.[fn8] While it is true that the statute creating MVH specifically declares its employees not be deemed state employees (clearly, the legislative record evidences a concern that the state, in one Legislator's words, not "pick up the tab" for their employment), it does not preclude a finding that MVH employees are public employees, employed in "public homes for veterans in Maine", 37-B M.R.S.A. 601, covered by the MPELRL. We direct the executive director to certify the election conducted on September 28, 1995, schedule a hearing on the pending election appeal as soon as possible, and schedule a pre- hearing conference(s) for the pending prohibited practice complaints. Issued at Augusta, Maine, this 4th day of January, 1996. MAINE LABOR RELATIONS BOARD /s/______________________________ Kathy M. Hooke Alternate Neutral Chair /s/______________________________ Howard Reiche, Jr. Employer Representative /s/______________________________ Gwendolyn Gatcomb Alternate Employee Representative _______________ 8 In fact, in the March 25, 1980 debate Representative Pearson raised the probability that these employees would become organized and there was no clamor of disagreement in response. These were the closing remarks before the final vote on the amendment. -7-