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)

STATE OF MAINE                               SUPERIOR COURT
KENNEBEC, ss.                                CIVIL ACTION
                                             Docket No. CV-83-114

EMPLOYEES,                         )
                       Plaintiff   )
          vs.                      )         DECISION and ORDER
CITY OF LEWISTON and               )
                      Defendants   )

       This is an appeal, pursuant to 26 M.R.S.A.  968(5)(F)
and M.R. Civ. P. 80B from a decision of the Maine Labor Relations
Board (Board).  The Board held that the City of Lewiston and
the Lewiston School Department (City) violated 26 M.R.S.A.  964(1)(A)
by including the names of ineligible employees in voting lists.  The
Board accordingly set aside the results of a November 22, 1982
decertification election and ordered that another election be held.

                             STATEMENT OF FACTS

       Since 1974, Council 74, American Federation of State, County
and Municipal Employees (AFSCME) has been the duly certified
bargaining agent for the Lewiston General Government Employee's
Bargaining Unit which is composed of employees of the City of
Lewiston and the Lewiston School Department.  On October 6, 1982,
the Maine State Employees Association (MSEA) petitioned the Board
pursuant to 26 M.R.S.A.  967(2) for an election to decertify AFSCME

                                    - 1 -

and certify MSEA as representative for the Lewiston Bargaining
Unit.  In a letter dated October 20, 1982, the Board scheduled the
election for November 22, 1982.  The letter informed the City that
it was required, pursuant to Rule 3.02(B) of the Board Election Rules,
to furnish a list of the names and addresses of employees in the
bargaining unit so that a list of eligible employees could be
prepared.  Under Rule 3.02(B) employees on the payroll on the
petition date (October 6, 1982) who remained on the payroll on the
election date (November 22, 1982) and who are "public employees" as
defined by 26 M.R.S.A.  962(6) are eligible to vote.  Section
962(6)(F) excludes from the definition of "public employee" any
employee "who has been employed less than 6 months."

       On October 28 and November 1, 1982, the City forwarded lists
containing the names and addresses of those employees who purportedly
were members of the bargaining unit.  Included in the lists were the
names of 10 probationary employees who were not "public employees"
because they had not been employed by the City for at least 6 months,
and who therefore were not eligible to vote.  AFSCME was aware that
the names of some ineligible workers were included in the list, but
did not reveal this fact to any other party.  The record does not
disclose whether MSEA knew that some probationary workers were on
the list.

       One hundred twenty-one employees voted in the November 22
election, with 62 votes for AFSCME, 53 for MSEA, 3 in favor of no

representative and 3 challenged.  One probationary employee was
challenged by AFSCME.  Seven ineligible employees voted in the
election and were not challenged by either party.  Since AFSCME
received a majority of the votes cast, the Board certified that
AFSCME had been elected the bargaining agent.

       On November 29, 1982, MSEA filed an unfair labor practice
complaint against the City and AFSCME alleging, inter alia, that
the employer had committed an unfair labor practice by submitting
voter eligibility lists to the Board which contained the names of
probationary employees who were not eligible to vote in the election.[fn]1

       The Board conducted a hearing on February 9, 1982.  In a
decision issued on February 23, 1983, the Board found that the
votes cast by the seven ineligible voters may have affected the
outcome of the election.  The Board held that by including a sufficient
number of non-bargaining unit employees on the voting lists to affect
the outcome of the election, the City has interfered with the
employee's rights to a fair election in violation of 26 M.R.S.A.
 964(1)(A).[fn]2  The Board set aside the results of the November 22
election and ordered that a new election be held.  The Board held

1 The complaint also contained charges that AFSCME
  had impermissibly interfered with the laboratory
  conditions of the election in violation of 26 M.R.S.A.

2 The Board did not reach the issues raised by M.S.E.A.'s
  claim that AFSCME had violated Section 964(2)(A).


that employees who were probationary employees at the time of
the November 22 election would be eligible to vote if they had
acquired 6 months employment by the time of the new election.[fn]3

                       ISSUES PRESENTED

       I.  Did the Board properly consider MSEA's post
           election challenges to the eligibility of voters.

      II.  Did the Board properly direct that employees who
           had been probationary employees at the time of
           the first election be permitted to vote in the
           second election.


       In this appeal, AFSCME does not challenge the Board's
findings that ineligible voters were included on the voting lists
or that inclusion of these voters may have affected the result of
the election.  AFSCME contends that the Board acted improperly in
allowing MSEA to challenge the eligibility of voters following the

       In N.L.R.B. v. A. J. Tower Co., 329 U.S. 324 (1946), the
United States Supreme Court set out the general rule regarding post
election voter challenges.  The Court affirmed the National Labor
Relation Board's policy of refusing to allow post election challenges

3 MSEA won the second election held on March 23, 1983 by
  a vote of 62 to 53.

to the eligibility of voters. The Court stated:

            All challenges as to registrants must
        be made during the intervening period or
        at the polls.  Thereafter it is too late.
        The fact that cutting off the right to
        challenge conceivably may result in the
        counting of some ineligible votes is
        thought to be far outweighed by the
        dangers attendant upon the allowance of
        indiscriminate challenges after the election.
        To permit such challenges, it is said, would
        invade the secrecy of the ballot, destroy
        the finality of the election result, invite
        unwarranted and dilatory claims by defeated
        candidates and "keep perpetually before the
        courts the same excitements, strifes, and
        animosities which characterize the hustings,
        and which ought, for the peace of the
        community, and the safety and stability of
        our institutions, to terminate with the close
        of the polls."  Cooley Constitutional
        Limitations (8th Ed., 1927), p. 1416.

Id at 331-2.  The Court held that the rule that once a ballot has
been cast without challenge and its identity has been lost, its
validity cannot be challenged is fair and efficacious and
universally recognized as consistent with democratic process.
Id at 332.  "It gives a desirable and necessary finality to
elections, yet affords all interested parties a reasonable period
in which to challenge the eligibility of any voter."  Id at 332-3.
The rule announced in Tower has been followed by both the NLRB and
state courts.  See, NLRB v. Paper Art Co., 430 F.2d 82 (7th Cir. 1970):
Michigan State University Employees Assn. v. Michigan State University,
1 P.B.C. 10,040 (Mich. Ct. of App. 1973).  The Maine Labor Relation
Board has followed the Tower rule in its decisions.


     There is, however, an exception to the Tower rule to "where
the Board's agents or the parties benefiting from the Board's
refusal to entertain the [challenge to the voter's eligibility]
know of the voter's ineligibility and suppress the facts."  (footnote
omitted).  Tower, supra 329 U.S. at 333.  See Matter of Wayne Hale,
62 NLRB 1393 (1945); Matter of Beggs & Cobb, 62 NLRB 193 (1945).
See also, N.L.R.B. v. Corral Sportswear, 383 F.2d 961, 965 (10th
Cir. 1967), cert. denied 390 U.S. 995 (1968); Ponce Television
Corp., 192 N.L.R.B. 115, 116, n. 9 (1971).  The Board urges that
this exception is applicable to the case at bar.

     For the above stated exception to the Tower rule to apply,
there must be a finding that a party knew that ineligible
employees were included on the voting lists, and that the party
suppressed this information.  The Board found that AFSCME knew
that the names of ineligible employees were on the voting lists,
and that AFSCME did not make this information available to the
other parties.  However, to find that the information concerning
ineligible voters was suppressed more is necessary than simply a
showing of knowledge and failure to disclose; there must be a duty
to disclose before suppression may be found.  Chicora Fertilizer Co.
v. Dunan, 91 Md. 144, 46 A. 347, 351 (1900); Murray v. Brotherhood
of American Yeomen, 180 Iowa 626, 163 N.W. 421, 428 (1917).  Cf.
Eaton v. Sontag, 387 A.2d 33, 38 (Me. 1978) (not fraud for one party
to say nothing respecting any particular aspect of property for
sale where no confidential or fiduciary relationship exists).


     Neither 26 M.R.S.A.  967, which provides for the election
of bargaining representatives, nor the Board Election Rules,
12-180 CMR ch.3, impose a duty on either the employer or the union
to challenge the eligibility of voters.  Although the employer
is required to provide a list of employees (Rule 3.02), this list
is not intended to be a final list of all eligible voters.  The
challenge procedure provides a mechanism resolving claims about
eligibilty.  Rule 3.06 states that "any voter may be challenged for
cause," but does not require a party who knows that a voter is
ineligible to assert a challenge.  Rule 3.06 also permits a party
to withdraw a challenge at any time.  The provisions regarding
challenges to voter eligibility indicate that there is no duty to
assert a challenge or disclose information regarding voter eligibility
The rules seem to require each party to the election to review the
eligibility of voters.  The burden of checking the accuracy of the
list rests with each participating union.  Kennecott Copper Corp.
Ray Mines Div., 122 NLRB 370 (1958) and one union is not required
to check the eligibility list for an opposing union.

     Furthermore, there is no suppression where the actions of one
party do not inhibit an opposing party from obtaining information.
See U.S. v. Mandel, 415 F.Supp. 1079, 1085 (D.C. Md. 1976) (no
suppression where defendant's inability to obtain favorable
evidence is not a consequence of any government action).  The
record does not indicate that AFSCME took any actions which
prevented MSEA from independently determining the qualifications
of voters.  Prior to the election MSEA could have obtained information


on the probationary status of employees simply by requesting
this information from the city.

     The Court finds that AFSCME did not breach any duty by
failing to challenge voters or inform the Board or the other
parties to the election that ineligible voters were included
on the voting lists.  The Court also finds that there is no
support in the record for a finding that AFSCME took any action
which prevented MSEA from determining whether ineligible voters
were included on the lists.  Accordingly, the Court holds that
AFSCME did not suppress facts concerning the inclusion of
ineligible voters and there is no factual basis for application
of the exception to the Tower rule permitting post election
challenges where a party has suppressed facts concerning voter
ineligibility.  Therefore, the Court holds that the Maine Labor
Relations Board decision to permit MSEA's post election
challenge to the eligibility of voters is incorrect as a matter
of law.[fn]4

     In its prohibited practices complaint, MSEA alleged that
AFSCME had violated 26 M.R.S.A.  964(2)(A) by making misleading
and coercive statements to employees during the election campaign.
The Board did not reach this issue.  Therefore, this case must be

4 In view of its holding that it was improper for the Board
  to entertain MSEA's post election challenge to voter
  eligibility, the Court does not reach the issues raised by the
  Board's decision to permit workers who were on probation
  at the time of the first election to vote in the second


remanded to the Board for findings on the issue of improper
campaign tactics.

     Upon the foregoing, it is hereby ORDERED that:  the appeal
is SUSTAINED; the decision of the Maine Labor Relations Board
is REVERSED; this matter is REMANDED to the Maine Labor
Relations Board for further proceedings consistent with this

Dated: June 15, 1983

                                                    Louis Scolnik
                                               Justice, Superior Court