STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 02-E-01 Issued: August 29, 2001 ______________________________ ) In Re: ) ) CHALLENGE OF BALLOTS IN THE ) EXECUTIVE DIRECTOR'S DECISION ELECTION FOR DECERTIFICATION ) OF THE WINTHROP BUS DRIVERS' ) ASSOCIATION ) ______________________________) PROCEDURAL HISTORY By letter dated June 11, 2001, the Winthrop School Department ("Employer"), the Winthrop Bus Drivers' Association/ MEA/NEA ("Union"), and Jessica Tessier ("Petitioner") were advised of the tentative scheduling of a decertification election for the unit consisting of bus drivers employed by the Employer, but excluding substitute and temporary bus drivers.[fn]1 The Employer was advised to submit a voter list containing the names and addresses of the employees in the bargaining unit eligible to vote pursuant to Chap. 11, 43 of the Board Rules. The Employer submitted the voter list on June 20, 2001, which contained the names of ten employees. On June 21, 2001, the Board issued the Notice of Decertification Election to the parties. On June 25, 2001, this Notice and a sample ballot were sent individually to the employees who appeared on the voter list, in light of the fact that the election was to be conducted in the summer. None of the parties objected to the election being conducted in the summer. On July 5, 2001, the Board sent the election ballot and instructions to all ten voters. On July 6, 2001, Jordan Mangin contacted the Board and requested a ballot, stating that he ____________________ 1 The history of the filing of Ms. Tessier's Petition for Decertification and the Union's objections to this petition are described in a previous Executive Director's Decision rendered in this matter, Case No. 01-E-02. This decision is incorporated herein by reference. [-1-] _________________________________________________________________ believed that he was a member of the bargaining unit although his name did not appear on the voter list. Mr. Mangin was sent a ballot, which was to be considered a challenged ballot within the meaning of Chap. 11, 50 of the Board Rules. Eleven ballots (from the ten voters on the voter list and Mr. Mangin) were returned. On July 20, 2001, the Attorney Examiner conducted a ballot count. Joan Morin, of the Maine Education Association, was the sole observer. Ms. Morin challenged the ballots of both Mr. Mangin and George Maxim, contending that neither was a member of the bargaining unit; therefore, both were ineligible to vote. These two ballots were set aside as challenged. The remaining nine ballots were opened, with a resulting count of five votes cast indicating a desire that the Union continue to represent the Winthrop bus drivers and four votes cast indicating a desire for no representative. Because the challenged ballots were sufficient in number to affect the result of the election, a hearing was scheduled to resolve the challenges on August 15, 2001. The parties were sent notice of this hearing, as were all voters on the voting list and Mr. Mangin. In attendance at the hearing were Ms. Morin and Joseph A. Stupak, Jr., representing the Union, and Superintendent Terry Despres, representing the Employer. Ms. Tessier did not appear at the hearing. Also in attendance were: Lisa Therrien, Linda Hannibal, Kevin Charette, George Maxim, Jordan Mangin and Barbara Mangin. Ms. Morin and Mr. Despres presented signed stipulations of fact. The Attorney Examiner reviewed these stipulations with all present, and re-formulated the stipulations with the input of those present, including Mr. Mangin and Mr. Maxim. Four exhibits were admitted: Exhibit No. 1 - Mr. Maxim's leave request and leave approval Exhibit No. 2 - March 2, 2001, seniority list Exhibit No. 3 - May 23, 2001, memo from David Raymond -2- _________________________________________________________________ Exhibit No. 4 - Weeks 15, 17 and 18 bus schedule No testimony was taken at the hearing, as the parties agreed that the matter could be submitted on stipulations and exhibits. Following the hearing, the parties were sent a copy of the proposed stipulations formulated during the hearing. The proposed stipulations were also sent to Mr. Mangin and Mr. Maxim. The parties agreed to one change in the stipulations (Mr. Maxim's start date after his leave of absence was changed from April 11, 2001, to March 28, 2001); Mr. Maxim agreed to this change. The parties submitted the signed stipulations to the Board on August 28, 2001. The parties advised the Board that they wished to submit no further evidence or argument in the matter. JURISDICTION The jurisdiction of the Executive Director or his designee to conduct elections and, as part of an election, to resolve a challenge to ballots, lies in 26 M.R.S.A. 967(2) and Chap. 11, 50 of the Board Rules. DISCUSSION The issue presented here is whether either Mr. Mangin or Mr. Maxim were members of the Winthrop Bus Drivers' bargaining unit at relevant times so as to be eligible to vote in the decertification election conducted between July 5, 2001, and July 20, 2001. I conclude for the reasons that follow that neither Mr. Mangin nor Mr. Maxim were members of the bargaining unit at the relevant times; therefore, neither was eligible to vote in the decertification election. The Maine Public Employees Labor Relations Law ("MPELRL") provides that elections are to be conducted amongst the members of a bargaining unit of public employees. The procedures for a decertification are the same as for a representation election. -3- _________________________________________________________________ 26 M.R.S.A. 967(2). An election is a process, generally beginning with the filing of a Board petition and ending with the ballot count. This process can take several months, as occurred in the present matter. The employees in a bargaining unit may change during this time, such as by transfer or resignation. The MPELRL does not provide at what points during this process a voter must be a member of a bargaining unit in order to participate in an election. This is left to the Board Rules, which provide at Chap. 11, 43: Voter Eligibility. The employees eligible to vote are those who were employed on the last pay date prior to the filing of the petition, who are employed on the date of the election, and who meet the applicable requirements defining covered employees set forth in 26 M.R.S.A. 962(6), 979-A(6), 1022(11), 1282(5), or 1322(2). Employees not working on election day because of illness, vacation, leave of absence or other reason are eligible to vote if they have a reasonable expectation of continued employment. . . . To be eligible to vote, an employee must therefore meet all three criteria: (1) be employed on the last pay date prior to the filing of the petition; (2) be employed on the date of the election; and (3) meet the definition of a "public employee" in the applicable law. While the Board Rules are not explicit on this point, the phrase "be employed on" in Chap. 11, 43 means that the voter must be employed in the relevant bargaining unit on the two crucial dates - last pay date prior to the filing of the petition and on the date of the election. Simply being employed by the employer (in another bargaining unit or another capacity, for instance) is insufficient. This can be concluded from two points. First, Chap. 11, 44 of the Board Rules provides that the employer must supply a voting list which contains " . . . the names and addresses of the employees in the unit who are employed -4- _________________________________________________________________ at the time of the submission of the list and who are otherwise eligible to vote under Rule 43 of this Chapter" (emphasis supplied). Employment in the relevant bargaining unit is, therefore, an essential element of being an eligible voter.[fn]2 Second, the Board has found that the Maine voter eligibility rule is based on a similar National Labor Relations Board rule and should be interpreted in the same way. Council No. 74, AFSCME and City of Lewiston, No. 81-A-04, slip op. at 4-5 (Me.L.R.B. Sept. 17, 1981). To be eligible to vote under NLRB precedent, an employee must be in the appropriate unit on the established eligibility date (normally the payroll period immediately preceding the date of the direction of election or election agreement) and on the date of the election. See Plymouth Towing Co., 178 NLRB 651 (1969); Greenspan Engraving Corp., 137 NLRB 1308 (1962). When an employee performs unit work is often crucial to whether that employee is an eligible voter under NLRB precedent.[fn]3 In summary, to be eligible to vote an employee must be a member of the bargaining unit on the last pay date prior to ____________________ 2 In a previous version of the Board Rules (effective September, 1985), the requirement that an employee be in the unit on the two crucial dates was more explicit. In this previous version, Rule 3.02(A) tracked language now found in Chap. 11, 43 and Rule 3.02(B) tracked language now found in Chap. 11, 44. Both Rule 3.02(A) and Rule 3.02(B) contained identical language regarding voter eligibility: the voter was required to be employed on the last pay date prior to the filing of the petition, on the payroll as of the election date, and a public employee as defined. Rule 3.02(B) provided that the voter list was to consist of employees in the appropriate unit who met these three criteria (emphasis supplied). When the rules were amended in 1990, the language regarding voter eligibility was removed from Rule 3.02(B) but the language regarding the appropriate unit was retained. The comments to the rule change did not indicate that this was meant to be a substantive change. It may be assumed that the rules were changed simply to remove the redundant language regarding voter eligibility that was contained in Rule 3.02(A) and 3.02(B). The intent was not to remove the requirement that an employee be in the relevant bargaining unit on the two crucial dates. 3 For instance, an employee on sick leave is presumed to be part of the unit only if he performed unit work before his leave. A & J Carthage, 309 NLRB 263 (1992). -5- _________________________________________________________________ the filing of the petition and on the date of the election. In the present matter, the last pay date prior to the filing of the petition was March 30, 2001. The date of the election was July 20, 2001 (the date of the ballot count). In the previous Executive Director's decision in this matter, regularly-scheduled bus drivers (full or part-time) were determined to be in the bargaining unit. Substitute and temporary bus drivers were determined not to be in the bargaining unit. During the summer when this election was held, none of the bus drivers worked on a regular schedule because school was out. Even the bus drivers who were regularly scheduled at the end of the 2000-2001 school year were not guaranteed a regular schedule at the start of the 2001-2002 school year. In this situation, whether a bus driver was a bargaining unit member at the end of the 2000-2001 school year and how long that bus driver was a bargaining unit member would be valid considerations in determining whether that bus driver remained in the bargaining unit during the summer, and hence on the date of the election. Mr. Maxim was a regularly-scheduled bus driver up to the time of his leave of absence which began December 11, 2000. As stipulated by the parties, Mr. Maxim did not seek a guarantee that he would be returned to his regularly-scheduled position when he returned from his leave, and he did not have a reasonable expectation that he would be returned to his regularly-scheduled position when he returned.[fn]4 The parties here disagreed about ____________________ 4 Chap. 11, 43 provides that employees not working on election day because of leave of absence are eligible to vote if they have a "reasonable expectation of continued employment." On this basis, for example, the Board has found that an individual who received a ballot, but resigned before the ballot count, was not an eligible voter. Teamster and Town of Boothbay Harbor, No. 99-EA-01 (Me.L.R.B. Feb. 22, 1999). The same rationale should apply to employees who do not have a reasonable expectation of continuing employment in the bargaining unit on the last pay date prior to the filing of the petition. -6- _________________________________________________________________ whether Mr. Maxim had the right, either under the employer's policies or the Family Medical Leave Act, to demand reinstatement to his regularly-scheduled position after his return from the leave. This question need not be decided to resolve the issue at hand, however. When Mr. Maxim returned from his leave on March 28, 2001, he did not demand return to his regularly- scheduled position and he began working as a substitute driver. Therefore, as of the last pay date prior to the filing of the petition (March 30, 2001), Mr. Maxim was a substitute driver and not a member of the bargaining unit. Whether Mr. Maxim was a member of the bargaining unit as of the date of the election is a much closer question. For about six weeks at the end of the 2000-2001 school year, Mr. Maxim worked on a regularly-scheduled basis, filling in for a bus driver on administrative leave. As discussed in the previous Executive Director's decision, a bus driver performing this type of work is considered a "temporary" driver, and not a member of the bargaining unit. However, the bus driver on leave resigned from his position and Mr. Maxim was not "filling in" for him as of the last two weeks of the school year. Even if this was a sufficient basis to find that Mr. Maxim was a member of the bargaining unit on the date of the election, he still was not an eligible voter because he was not a member of the bargaining unit on the last pay date prior to the filing of the petition, and an employee must meet both these requirements to be an eligible voter. Mr. Mangin was a substitute driver during most of the 2000- 2001 school year. He continued to be a substitute as of March 30, 2001, the last pay date prior to the filing of the petition. In the last three weeks of the school year, Mr. Mangin worked on a regularly-scheduled basis, filling in for a regular driver who was medically unable to drive. The latter driver -7- _________________________________________________________________ never left his position; therefore, Mr. Mangin was a temporary driver while working in this replacement capacity. Neither substitute nor temporary drivers are part of the bargaining unit. Mr. Mangin was not a member of the bargaining unit on either the last pay date prior to the filing of the petition or on the date of the election. He was not an eligible voter within the meaning of Chap. 11, 43 of the Board Rules. A final issue should be addressed. Mr. Mangin offered as an exhibit a memo dated May 23, 2001, from the transportation director which stated, in part, that both Mr. Maxim and Mr. Mangin had "accepted one of two full-time route driver positions" available at that time (Exhibit No. 3). Both parties objected to the authenticity and relevance of this memo; the Superintendent stated that he had never seen the memo, although allegedly addressed to him. Considerable time in testimony could have been taken to explore the issues raised by this memo--the purpose of the memo, whether it was authentic, when it was created, whether the transportation director had authority to fill regular positions, etc. However, I do not believe that these issues need to be resolved in order to decide whether Mr. Mangin and Mr. Maxim were eligible to vote. As more fully described in the previous Executive Director's decision, whether a bus driver was in the bargaining unit was a function of whether they were working on a regularly-scheduled basis and whether they were working as a replacement driver. The terms that the parties and the drivers have used to describe their type of position-- "regular," "trip-sub," "part-time sub," "long-term sub," "temporary"--have not been used with any consistency or, in some cases, accuracy. Due to this, I have been careful to look at the actual work performed, not necessarily how the parties or the drivers have characterized their work. The manner in which the transportation director described the employment status of -8- _________________________________________________________________ Mr. Mangin and Mr. Maxim in this memo did not alter the fact that both were replacing regular drivers as of the memo date, and thus were temporary drivers. Further, even if I were to find that both Mr. Mangin and Mr. Maxim were regular (not temporary) drivers as of the date of this memo, they still would not be found eligible to vote as both men were substitute drivers on the last pay date prior to the filing of the petition. CONCLUSION For these reasons, I hold that neither Mr. Mangin nor Mr. Maxim were eligible to vote in the decertification election held for the Winthrop bus drivers' bargaining unit, within the meaning of Chap. 11, 43 of the Board Rules. Their ballots, challenged and set aside at the July 20, 2001, ballot count, shall not be opened or counted in the election. An election certification shall be issued based upon the nine ballots opened at the July 20, 2001, ballot count. Dated at Augusta, Maine, this 29th day of August, 2001. MAINE LABOR RELATIONS BOARD /s/_______________________________ Dyan M. Dyttmer Designee of the Executive Director Pursuant to 26 M.R.S.A. 968(4), any party aggrieved by this determination may appeal it 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 five (5) days of the date of issuance of this determination. See Chap. 10, 7, Chap. 11, 30, and Chap. 11, 52 of the Board Rules for requirements. -9- _________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 02-E-01 _________________________________ ) In Re: ) ) CHALLENGE OF BALLOTS IN THE ) STIPULATIONS OF FACT ELECTION FOR DECERTIFICATION ) OF THE WINTHROP BUS DRIVERS' ) ASSOCIATION ) _________________________________) 1. George Maxim was employed as a regular bus driver by the Winthrop School Department (hereinafter "employer") until his retirement in 1996. 2. Mr. Maxim returned to employment as a regular bus driver during the 1999-2000 school year. 3. Mr. Maxim did not accept any employment as a bus driver during the summer of 2000. 4. Mr. Maxim returned as a regular bus driver at the start of the 2000-2001 school year. He worked as a regular bus driver until December 9, 2000, when he requested a leave of absence until April 15, 2001. This request was granted by the transportation director (Exhibit No. 1). 5. Prior to obtaining the leave of absence, Mr. Maxim did not obtain any guarantee from the employer as to what his employment status would be upon his return from the leave (regular driver, substitute driver, etc.). He had no reasonable expectation that he would return to his regular position upon his return from the leave. 6. When Mr. Maxim went on the leave of absence, a substitute driver (Mary Lou Titus) was made a regular driver and given the regular run formerly driven by Mr. Maxim (Exhibit No. 2). 7. When Mr. Maxim returned from the leave of absence on March 28, 2001, he drove co- curricular trips for about one and one-half weeks as assigned by the transportation director. He did not request to be returned to a regular bus driver position. 8. After this period, Mr. Maxim was assigned to drive the run of a regular driver, Jack Main, who had been placed on administrative leave pending a disciplinary investigation by the employer. It was unknown how long Mr. Main was going to remain on leave, at that time. 9. Mr. Main resigned from employment effective the end of May, 2001. Mr. Maxim continued to be assigned to Mr. Main's run for the remainder of the school year which concluded on June 14, 2001. [-1-] _________________________________________________________________ 10. Jordan Mangin was first employed by the employer as a substitute bus driver during the 2000-2001 school year. Mr. Mangin continued being employed as a substitute bus driver during most of this school year. 11. During the last three weeks of the 2000-2001 school year, Mr. Mangin was assigned to drive the run of a regular bus driver, David Manter, who was medically unable to perform the job of driving. It was unknown how long Mr. Manter was going to be unable to perform his job. Mr. Manter remains unable to perform his job at this time. 12. In June, 2001, the transportation director held a meeting of drivers in order to offer the summer work that was available. This work included driving students on a semi-regular basis to summer school programs, and some sporadic field trips. Certain regular bus drivers attended the meeting, as did Mr. Maxim and Mr. Mangin. 13. Both Mr. Maxim and Mr. Mangin were offered some summer trips. Mr. Maxim declined the work; Mr. Mangin accepted two trips. 14. The Winthrop Bus Drivers' Association ("Union") filed grievances related to the manner in which the summer work was offered to drivers. At least one of these grievances was successful. The superintendent agreed that the transportation director did not follow the accepted procedure in offering summer work, and offered compensation to some regular drivers. 15. The transportation director recently determined that eight regular runs will be needed to transport children to and from school in the fall of 2001. This is a decrease from ten runs needed during the 2000-2001 school year. Assignments to these runs have not yet been made to the regular bus drivers. 16. The last pay date prior to the filing of the decertification petition on April 10, 2001, was March 30, 2001. Dated: ______________________________Dated: _________________________________ By: ______________________________ By: _________________________________ Joan Morin Terry Despres UniServ Director Superintendent of Schools Maine Education Association Winthrop School Department 35 Community Drive 8 Summer Street Augusta, ME 04330-9487 Winthrop, ME 04364 Fax: 623-2129 Fax: 377-3915 -2-