STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 01-E-01
Issued: November 16, 2000
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)
In Re: )
) EXECUTIVE DIRECTOR'S
PETITION FOR DECERTIFICATION, ) DECISION
SAD #5 BUS DRIVERS )
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INTRODUCTION
On October 11, 2000, Wanda Ingham filed a petition with the Maine Labor Relations
Board ("Board") on behalf of the Maine Education Association/National Education Association
("MEA"). The purpose of the petition was designated as "Decertification Election." The petition
related to an eight-person bus driver unit of SAD #5 in Rockland, represented since 1989 by
Teamsters Union Local 340 ("Teamsters"). Accompanying the petition were showing of interest
cards signed by more than 30 percent of the employees in the bargaining unit. The form and
content of each card was as follows:
Showing of Interest for Decertification/Bargaining Agent Election
I, _________________________________ no longer desire to be
(Print or Type Name)
represented by _________________________________________________ for
the purpose of collective bargaining.
I desire to be represented by the Maine Education Association/National Education
Association for the purpose of collective bargaining.
Date: _________________________________________________
Date must be hand written by person signing the card.
Signature: _____________________________________________
Each card was completed to indicate that the identified employee no longer desired to be
represented by Teamsters Local 340 for the purposes of collective bargaining, and that the
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employee desired to be represented by the MEA/NEA for purposes of collective bargaining.
By letter dated October 12, 2000, the Board Attorney Examiner instructed Ms. Ingham
that she was to advise the Board whether she wished the petition to be processed as a "straight"
decertification election (that is, an election that only decertifies the incumbent bargaining agent
without simultaneously electing a rival bargaining agent), or whether she wished to amend the
petition to reflect "Decertification/Bargaining Agent Election" as the purpose of the petition. She
was further advised that any amended petition must be received by the Board no later than
October 27, 2000, pursuant to Board Rule 1.05.
By letter dated October 18, 2000, Carl Guignard of the Teamsters requested that the
Board conduct a hearing on the issue of whether MEA could request a "straight" decertification
of the Teamsters when they were not seeking to represent the SAD #5 bus driver unit.
On October 23, 2000, Ms. Ingham filed an amended petition with the Board seeking a
"Decertification/Bargaining Agent Election." On this petition, Ms. Ingham's signature was dated
October 17, 2000. The notarization was dated September 26, 2000. On the original of the
amended petition filed with the Board, it appeared that Ms. Ingham mistakenly began to sign the
signature line for the notary, in black ink. These letters were scratched out with blue ink, and
then the notary's signature appeared on the signature line in blue ink. The same notary signed
both the original petition and the amended petition; his original signature was contained on both
petitions.
By letter dated October 25, 2000, Mr. Guignard questioned whether the issue he
previously raised for the Board's consideration could be considered moot in the event that the
amended petition was found insufficient. He indicated that the inconsistent date on the
notarization was a defect in the amended petition, and suggested that this could constitute perjury
by Ms. Ingham.
On October 30, 2000, Shawn Keenan, Esq., of the MEA hand-delivered a second
amended petition in this matter. This petition also sought a "Decertification/Bargaining Agent
Election" for the SAD #5 bus driver unit. This petition was in substance identical to the earlier-
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filed amended petition, except that the signature of Ms. Ingham was dated October 30 and the
notarization section was also dated October 30.
The petitioner filed a statement of refusal of service by the Teamsters of the second
amended petition on November 1, 2000, and proof of service upon the employer of the second
amended petition on November 2, 2000.[fn]1
By letter dated November 2, 2000, Mr. Guignard again challenged the sufficiency of the
second amended petition, because it was filed after the deadline to amend the original complaint
and because it was served upon the Board before it was served upon the parties.
The collective bargaining agreement for this unit expired on June 30, 2000.
JURISDICTION
The jurisdiction of the executive director or his designee to decide the sufficiency of the
petitions filed in this matter lies in 26 M.R.S.A. 967(2) and Board Rules 1.05 and 2.02.
DISCUSSION
All of the petitions filed by the MEA in this matter--the original petition, the amended
petition and the second amended petition--raised issues regarding sufficiency that will be
addressed in turn below.
The original petition for "straight" decertification filed on October 11
The original petition filed by the MEA requested a "straight" decertification, while the
showing of interest submitted with the petition reflected a clear desire on the part of the signing
employees that a decertification/bargaining agent election be held for their unit. The MEA
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1 The petitioner also filed proof of service upon the Teamsters of the second amended petition on
November 3, 2000. However, Board Rule 2.01 provides that either refusal of service or proof of service
may be filed with the petition. Thus, the filing of the second amended peititon was perfected on
November 2, 2000, after refusal of service by the Teamsters and proof of service upon the employer were
properly filed with the Board.
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attempted later to amend the petition to indicate its request for a decertification/bargaining agent
election. As more fully discussed below, however, this amended petition was insufficient due to
an error in its notarization. The question remains, therefore, whether the original petition was
insufficient because it was not consistent with the content of the showing of interest.
The submission of a showing of interest is critical to both a petition for a bargaining agent
election and a petition for decertification. Board Rule 3.02 requires that a petition for bargaining
agent election be accompanied by a showing that at least 30 percent of a bargaining unit desires
to be represented by the petitioning employee organization for the purposes of collective
bargaining. Board Rule 2.03 requires that a petition for decertification be accompanied by
evidence that at least 30 percent of the employees in the unit no longer desire to be represented
for the purposes of collective bargaining by the incumbent bargaining agent. Therefore, a
petition for decertification/bargaining agent election must be accompanied by a showing that
meets both of these requirements.
As a practical matter, the showing of interest that accompanies a petition for
decertification/bargaining agent election may consist of single documents that each express that
the signing employee no longer desires to be represented by the incumbent bargaining agent and
desires to be represented by a different bargaining agent instead. It was this form of showing that
accompanied the MEA's original petition here.
If the Board were to process a "straight" decertification petition, even though it was not
consistent with the content of the showing of interest, this would result in a type of election
unintended by the employees who signed the showing of interest. The employees would be
presented with the option to retain or to decertify the present bargaining agent, but with no option
to elect an alternative bargaining agent. In these circumstances, a vote to decertify would result
in these employees being without a contract and without a bargaining agent to negotiate a new
contract. The employees signing the showing of interest did not express a desire for this option
or this outcome.
Such an outcome would also contravene the declared purpose of the MPELRL to protect
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the right of public employees to join labor organizations of their own choosing. 26 M.R.S.A.
961.
In addition, a petition that is not in keeping with the showing of interest fails to place the
interested parties on notice of what Board procedure to expect and to prepare for. The Board
Rules require that petitions both for bargaining agent election and for decertification must be
served upon the incumbent bargaining agent and upon the employer. The purpose of this
requirement is to alert the affected parties of the possibility of an election or other Board
procedure. In the case of a "straight" decertification petition, the incumbent bargaining agent
may, for instance, wish to contact its members in the bargaining unit and begin a campaign to
thwart the drive to decertify. In the case of a decertification/bargaining agent election, the
incumbent bargaining agent may wish to contact its members and contrast its qualifications as a
bargaining agent with the qualifications of the rival bargaining agent.
The showing of interest is filed only with the Board, as part of the confidential election
process. 26 M.R.S.A. 967(2). This makes the petition itself even more crucial in giving proper
notice to the interested parties.
The Board has found that even a technical error in a petition may diminish the quality of
notice to the affected parties. In Keith Emery v. Teamsters Union Local 340, 98-EA-02 (Interim
Order on Election Appeal March 23, 1998), the Board found that a decertification petition was
improperly filed because the copy served upon the incumbent bargaining agent was not
notarized. The Board observed that an incumbent bargaining agent should not be expected to act
on a petition which is not notarized. Slip op. at 3.
The petition here is even more seriously flawed than the petition in Keith Emery, since it
failed to place the incumbent bargaining agent on notice of the true purpose of the petition, and
whether it was supported by a showing of interest reflecting a desire only to decertify the
Teamsters, or to decertify the Teamsters and certify MEA.
For these reasons, the original petition was insufficient and must be dismissed pursuant to
Board Rules 2.02(C) and 1.05(B), as it was inconsistent with the showing of interest.
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Because the original petition is being dismissed, the issue raised by the Teamsters that a
rival bargaining agent cannot seek the "straight" decertification of an incumbent bargaining agent
is rendered moot.
The amended petition for decertification/bargaining agent election filed on October 23
The date above the notarization on the amended petition was typed as September 26,
2000. The date on the signature line for the amended petition was typed as October 17, 2000.
While the Teamsters have suggested that this discrepancy supports a finding of perjury on the
part of Ms. Ingham, a close comparison of the amended petition and the original petition does not
support such a suggestion. The two documents are clearly separately-typed documents; the
amended petition is not a copy of the original petition. For instance, the information on each is
slightly different and different typed "corrections" can be discerned on each document. Each
document contains an original signature of the notary, in a different place upon the signature line.
The most likely conclusion to be drawn from this comparison is that someone used the
information on the original petition to type the amended petition, changed the date on the
signature line for the petition, but neglected to change the date above the notarization. However,
the exact sequence of events regarding the notarization cannot be ascertained from only a review
of the documents.
The issue raised is whether such a discrepancy, as it appears on the face of the petition,
rendered the amended petition insufficient under the Board Rules.
In Keith Emery, supra, the Board noted that the purpose of Rule 2.01 is to impress upon
the signer of a petition that he will be held accountable for the truth and accuracy of the contents
of his petition. There, the Board found that a petitioner must serve the same notarized petition
upon interested parties as the petitioner files with the Board.
In AFSCME, Council 93 v. Maynard, et al., Nos. 86-22, 86-25 and 86-A-03 (Me.L.R.B.
Mar. 10, 1987), the Board considered the case of a decertification petition that was signed several
days before the petitioner acknowledged her signature before a Justice of the Peace. At the time,
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Board Rule 2.01 required that a decertification petition be "signed and duly acknowledged before
a notary public or justice of the peace and shall contain a declaration by the person signing it
under penalty of perjury that its contents are true and correct to the best of his knowledge and
belief."[fn]2 The Board found that the petitioner satisfied this requirement by appearing before the
justice, acknowledging her signature and stating, under the penalty of perjury, that the contents of
the petition were true. The Board stated:
We do not interpret Rule 2.01 as requiring that the petition be signed in the
presence of a Notary Public or Justice of the Peace, but merely that the
acknowledgment be made before an officer authorized to administer oaths in this
jurisdiction.
Slip op. at 17. Thus, the Board has found that it is the personal appearance and the making of
oath before a notary that is the paramount requirement of Rule 2.01.
In the present matter, the amended petition was signed and dated on October 17, several
weeks after the date of the notarization. Unlike the petitioner in AFSCME, Council 93 v.
Maynard et al., supra, the present petitioner cannot assert that the signed petition was taken to a
notary later, where the proper oath could be made. It was impossible for the present petitioner to
have personally appeared on September 26 before the notary public and made oath to the
contents of a petition that was not in existence until October 17.
As stated above, this confusion was most likely due to an error. Yet this error has
resulted in a real question regarding whether the petitioner complied with a fundamental
condition of Rule 2.01 in the completion of the amended petition.
This defect in the amended petition is comparable in importance to the defect in the
petition in Keith Emery, supra, where the petitioner failed to submit a petition with notarization
to the incumbent bargaining agent. As the Board noted in that case, whether or not the
incumbent bargaining agent was actually prejudiced by the improper filing in this case,
". . . [W]e must be careful to enforce the Rules and Procedures of the Board in every case." Slip
op. at 3-4.
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[fn]2 In 1990, the Board deleted the requirement in Rule 2.01 and similar rules that a petition be
"signed and duly acknowledged before a notary public . . . ," replacing it with the present language which
provides that a petition "shall be signed before a notary public . . . ." In the Basis Statement
accompanying the rule change,the Board explained that this deletion was to clarify the distinction
between an acknowledgement and a statement under oath; where the rules required both, the unnecessary
language requiring an acknowledgment was deleted.
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Because the amended petition was not properly notarized, it was insufficient and must be
dismissed pursuant to Board Rules 2.02(C) and 1.05(B). Therefore, it could not be used to
properly amend the original petition, which was also insufficient.[fn]3
The second amended petition filed on November 2
The second amended petition filed by the petitioner also requested a decertification/
bargaining agent election. This petition was properly notarized and was not on its face deficient
in any way. By designating this last-filed petition as a "second amended petition," the petitioner
indicated a desire that it be treated as an amendment to the original petition. However, the
petitioner had until October 27, 2000, to file a timely amendment to the original petition,
pursuant to Board Rules 2.02 and 1.05. The second amended petition was not properly filed until
November 2, 2000, after the proofs of service were filed in accordance with Board Rule 2.01.
Therefore, this petition cannot be treated as a timely and proper amendment to the original
petition.
The issue remains whether this second amended petition can be treated as a new petition,
properly filed on November 2, 2000.
Board Rule 1.05 is silent on the issue of how many amendments may be allowed to an
insufficient petition. Presumably, a petitioner may file more than one amendment, as long as the
amended petitions are properly filed within the 15 days allowed. Rule 1.05 does not require any
particular caption to be given to a petition or to an amended petition.
Indeed, the Board Rules are entirely silent on the issue of the proper caption of petitions,
or amended petitions. The MLRB Form 2, which is officially sanctioned in the Rules to be used
as the petition format, simply contains a caption "petition." Parties are left to add to this caption,
if they wish.
Many elements of the petition are essential to processing the petition, and for placing the
parties on notice of the proceedings. For instance, the "purpose of the petition" (unit
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3 In Keith Emery, the Board did not dismiss the insufficient petition, but held it in abeyance for
14 days to allow the petitioner to properly serve the notarized petition upon the incumbent bargaining
agent, and to submit proof of service to the Board. However, the present matter cannot be so easily
remedied, particularly as the timing of the filing of the petition may become critical. As the time to
amend the original petition has passed, and MEA has also filed a second amended petition outside of the
time to amend the original petition, the logical course here is to dismiss both the original and the
amended petition and address the sufficiency of the second amended petition.
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determination, unit merger, etc.) is essential to the issue of notice, as discussed in this decision
earlier. The description and number of employees in the bargaining unit is essential to determine
whether the showing of interest is sufficient. The notarization is essential to showing that the
petitioner is accountable for the accuracy of the contents of the petition, as the Board found in
Keith Emery, supra.
However, the caption of the petition cannot in this case be deemed essential. Whether the
petition was named "second amended petition" or "new petition" or "petition," the document still
served to place the Teamsters on notice of the purpose of the petition, and all other essential
elements of the petition. It is a sufficient petition within the meaning of Board Rule 2.02.
The Teamsters have also raised the issue that the second amended petition was provided
to the Board prior to its being served upon the parties. Board Rule 2.01 provides that the
petitioner shall, prior to the filing of the petition with the Board, serve a copy of its petition upon
the incumbent bargaining agent, the employer, and any organization which, to petitioner's
information and belief, claims to represent any employees in the bargaining unit. However, if a
party provides a petition to the Board prior to serving it upon the parties, it is the Board's practice
to "hold" the petition. Once service is completed and proof of service is provided to the Board,
only then is the petition considered "filed" within the meaning of the Rules.
Thus, the Board would not consider the second amended petition insufficient because it
was provided to the Board prior to being served upon the parties. Rather, the date of filing for
the second amended petition here is November 2, 2000, when the proof of service upon the
employer was filed with the Board, thereby perfecting the filing of the petition.
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CONCLUSION
The original petition filed on October 11, 2000, and the amended petition filed on October 23,
2000, are dismissed as insufficient, within the meaning of Board Rules 2.02 and 1.05. The second
amended petition is found to be sufficient and deemed to have been filed on November 2, 2000.
The second amended petition shall be further processed according to Chapter 2 of the Board
Rules.
Dated at Augusta, Maine this 16th day of November, 2000.
MAINE LABOR RELATIONS BOARD
/s/___________________________
Dyan M. Dyttmer
Designee of the Executive Director
The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) and Board Rule
1.05(B), to appeal this decision to the Maine Labor Relations Board. To initiate such an appeal,
the party seeking appellate review must file a notice of appeal with the Board within fifteen (15)
days of the date of issuance of this report. See Board Rules 1.05(B), 1.12 and 7.03 for
requirements.
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