Teamsters Local 340 and City of Brewer, No. 77-A-06, affirming No. 77-UD-16 STATE OF MAINE MAINE LABOR RELATIONS BOARD [MLRB No. 77-A-06] [Issued: September 19, 1977] ________________________________________ ) INTERNATIONAL BROTHERHOOD OF TEAMSTERS, ) CHAUFFEURS, WAREHOUSEMEN AND HELPERS ) OF AMERICA, LOCAL #340 ) REPORT OF APPELLATE REVIEW ) and ) OF ) CITY OF BREWER ) UNIT DETERMINATION REPORT ________________________________________) This case comes to the Maine Labor Relations Board by way of an appeal dated June 23, 1977 and filed by the City of Brewer on June 24, 1977, pursuant to 26 M.R.S.A. 968(4) and Rule 1.10 of the Rules and Procedures of the Maine Labor Relations Board resulting from a Unit Determination Report issued on June 10, 1977, involving the City of Brewer Public Works Department. The grounds for the appeal are as follows: 1. That the hearing examiner erred in his determination that the membership cards used for a showing of interest under Rule 1.05 are not required to be disclosed under the Maine Freedom of Access Law (1 M.R.S.A., 402(3)). Neither the Municipal Public Employees Labor Relations Law requires, nor the Maine Freedom of Access Law permits public records such as the written proof of showing of interest, to be withheld from public disclosure. 2. That the hearing examiner erred in his determination that Rule 1.05 of the Rules and Procedures of the Maine Labor Relations Board requires that membership cards used for showing of interest be held confidential. Rule 1.05(B) merely limits required filings to the Board and does not declare that once in the possession of the Board, such proof is to be regarded as confidential or secret. 3. That the hearing examiner erred in his determination that membership cards running to the International Brotherhood of Teamsters, Chauf- feurs, Warehousemen and Helpers Union of America are an adequate show- ing of interest. The Petitioner was Local No. 340 not the International Union, and therefore the purported showing of interest submitted does not support the Petitioner. The first issue presented by the appeal concerns the disclosure by the Maine Labor Relations Board of union authorization cards submitted to the Maine Labor Relations Board pursuant to 26 M.R.S.A. 966, 26 M.R.S.A. 967 and Rule 1.05 of the Rules and Procedures of the Maine Labor Relations Board. The Maine Freedom of Access Law (1 M.R.S.A. 401 et seq.) in 408 provides: "Except as otherwise provided by statute, every person shall have the right to inspect and copy any public record during the regular business hours of the custodian or location of such record. . , ," Section 402 (3) defines "public records" to mean: ". . . . any written, printed or graphic matter or any mechanical or electronic data compilation from which information can be ob- tained, directly or after translation into a form susceptible of visual or aural comprehension, that is in the possession or cus- tody of an agency or public official of this State or any of its political subdivisions and has been received or prepared for use in connection with the transaction of public or governmental busi- ness or contains information relating to the transaction of public or governmental business, except: [-1-] ____________________________________________________________________________________ A. Records that have been designated confidential by statute; B. Records that would be within the scope of a privilege against discovery or use as evidence recognized by the courts of this State in civil or criminal trials if the records or inspection thereof were sought in the course of a court proceeding; C. Records, working papers and interoffice and intraoffice memoranda used or maintained by any Legislator, legislative agency or legislative employee to prepare proposed Senate or House papers or reports for consideration by the Legisla- ture or any of its committees during the biennium in which the proposal or report is prepared; and D. Material prepared for and used specifically and exclusively in preparation for negotiations, including the development of bargaining proposals to be made and the analysis of proposals received, by a public employer in collective bargaining with its employees and their designated representatives. E. Records, working papers, interoffice and intraoffice memoranda used by or prepared for subcommittees of the University of Maine Board of Trustees, Board of Trustees of the Maine Mari- time Academy, or faculty and administrative committees of both institutions." Section 401 provides: "The Legislature finds and declares that public proceedings exist to aid in the conduct of the people's business. It is the intent of the Legislature that their actions be taken openly and that the records of their actions be open to public inspection and their deliberations be conducted openly . . . This subchapter shall be liberally construed and applied to promote its underlying purposes and policies as contained in the declaration of legislative intent." As cited earlier, one of the exceptions in 1 M.R.S.A. 402(3) is "records that have been designated confidential by statute . . . ." The Municipal Public Employees Labor Relations Act provides for a "uniform basis for recognizing the right of public employees to join labor organizations" 26 M.R.S.A. 961 by establishing procedures in 26 M.R.S.A. 966 and 26 M.R.S.A. 967 for the determination of bargaining units and the selection of a bargaining agent. Section 967 provides that "upon signed peti- tion of at least 30% of a bargaining unit of public employees that they desire to be represented by an organization," the executive director of the Board "shall conduct a secret ballot election . . . ." (emphasis supplied). Consistent with the liberal construction of public records in the Maine Freedom of Access Law, and with the public policy underlying the Municipal Public Employees Labor Relations Act, we apply a similar liberal construction to the records required for the secret ballot election process under 26 M.R.S.A. 937. Since the authorization cards or other forms of showing of interest are an indispensable part of the confidential process of bargaining agent selection, we hold that the cards themselves or other forms of showing of interest must be treated as confidential and are, therefore, exempt from disclosure. Accordingly, we conclude that the hearing examiner was correct in not releasing the authorization cards to the City of Brewer and deny the appeal with respect to the first ground. The second ground for appeal concerns Rule 1.05 of the Rules and Procedures of -2- ____________________________________________________________________________________ the Maine Labor Relations Board which states as follows: 1.05 Showing of Interest. (A) Required Proof - Petitions filed by an employee or employee organization shall contain written proof that said organization represents 30% of the regular employees in the proposed unit. (B) Form of Proof - Such proof need be filed with the Board only and shall include one of the following: a copy of effective mem- bership cards, a list of employees authorizing current payroll de- ductions for membership dues, or authorization cards or petitions containing the printed name and signature of employees. Any form of proof filed with the Board pursuant to this rule shall contain, as a minimum, (i) the signature of the employee, (ii) the type- written or printed name of that employee, and (iii) the date each re- spective signature thereon was obtained. Any signature which is un- dated or which shows that it was obtained more than six (6) months prior to the filing of the showing of interest with the Board shall be deemed invalid for the purposes of calculating the requisite percentage for a proper showing of interest. (C) Acceptance of Proof - The determination whether such proof is satisfactory shall be made administratively, and shall only be subject to review by the Board. The rule clearly states that the showing of interest need be filed only with the Board and "shall only be subject to review by the Board." Rule 1.05(C). We agree with the decision of the hearing examiner that above cited rule limits the appropriate use of the showing of interest and designates such a showing as confi- dential and deny the appeal with respect to the second ground. The third ground for appeal was that the hearing examiner erroneously determined that showing of interest for the unit determination petition was adequate. As quoted above, Rule 1.05 states that the form of proof may be, inter alia, copies of "effec- tive membership cards" if they contain, as a minimum the signature of the employee, the typewritten or printed name of that employee, and the date each respective sig- nature thereon was obtained. The cards submitted in this case were cards for the parent organization and, although they did not include a local designation, complied with the provisions of Rule 1.05. We agree with the hearing examiner that the form of proof was adequate and deny the appeal with respect to the third ground. As a result of the foregoing decision, the appeal filed by the City of Brewer on June 24, 1977, should be and hereby is DISMISSED. Dated at Augusta, Maine, this 19th day of September, 1977. MAINE LABOR RELATIONS BOARD /s/_______________________________________ Walter E. Corey, Chairman /s/_______________________________________ Robert D. Curley, Employer Representative /s/________________________________________ Michael Schoonjans, Employee Representative -3- ____________________________________________________________________________________