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-]
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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

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     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.  

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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 

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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-
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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 

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_________________________________________________________________

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-
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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.

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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-]
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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

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