Council 74 AFSCME and City of Augusta, No. 81-A-03, affirming in part and modifying No. 81-UD-20. Board decision affirmed by CV-81-477. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 81-A-03 Issued: September 25, 1981 _________________________________ ) COUNCIL #74, AMERICAN FEDERATION ) OF STATE, COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO ) ) DECISION AND ORDER and ) ON SECTION 968(A) APPEAL ) CITY OF AUGUSTA ) _________________________________) This is an appeal by Council #74 of the American Federation of State, County and Municipal Employees, AFL-CIO (Union) of a Maine Labor Relations Board hearing examiner's report issued pursuant to 26 M.R.S.A. 966 and 967 on June 2, 1981. The hearing examiner ruled that the City of Augusta's (City) petition for election was properly filed, and that a bargaining unit of City clerical workers was no longer appropriate for collective bargaining. The hearing examiner concluded that since the bargaining unit was no longer viable, it was not necessary to act on the City's election petition. The Union contends on appeal that the hearing examiner erred by finding that the petition for election was a proper filing, and by determ- ining that the bargaining unit was no longer viable and that it was not necessary to act on the petition for an election. The Union requests that we dismiss the election petition and order that the Union remains the certified bargaining agent for the clerical workers bargaining unit. A hearing was held on the appeal on June 26, 1981, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Wallace J. Legge. The Union was represented by Stephen P. Sunenblick, Esq, and the City by Charles E. Moreshead, Esq. The parties were given full opportunity to examine and cross-examine witnesses, introduce evidence, and make argument. Both parties filed post-hearing briefs, which have been considered by the Board. JURISDICTION The Union is an aggrieved party within the meaning of 26 M.R.S.A. 968(4). The City is a public employer as defined in 26 M.R.S.A. 962(7). The jurisdiction [-1-] ____________________________________________________________________________________ of the Maine Labor Relations Board to hear this appeal and render a decision and order lies in 26 M.R.S.A. 968(4). FINDINGS OF FACT Upon review of the entire record, the Board finds: 1. On April 29, 1970, the Commissioner of the Department of Labor and Industry, the predecessor agency to the Maine Labor Relations Board, issued a unit determination report which established a bargaining unit composed of clerical workers employed by the City of Augusta. Thirteen employees holding the following job classifications were included in the unit: Clerk-Typist I and Clerk II in the Assessors office; Bookkeeper and Clerk-Machine Operator I in the City Auditor's office; Clerk-Typist I in the City Clerk's office; Clerk I and II in the Treasurer - Tax Collector's office; Nurse and Clerk II in the Health and Welfare office; Dispatcher/Clerk in the Public Works Department; and Clerk-Typist I in the Police Department. 2. On May 27, 1970, the Department of Labor and Industry conducted a representa- tion election for the clerical employees bargaining unit. Ten employees voted in the election, with 8 voting for the Union and 2 voting for no representation. The Depart- ment of Labor and Industry accordingly certified the Union as the bargaining agent for the clerical employees unit. 3. Little, if any, collective bargaining took place between the Union and the City after the Union was certified as bargaining agent. No collective bargaining agreements were consummated, and the Union did not represent the clerical employees in grievance proceedings or otherwise purport to represent the employees for a period of over 10 years. 4. On August 29, 1980, the Union sent a letter to the City Manager requesting negotiations for a contract for the clerical employees. The City's attorney responded to the request in a letter dated September 15, 1980, stating that the City had no obligation to bargain because it questioned whether the Union still represented a majority of the clerical employees, and requesting that the Union supply proof that it continued to represent a majority. In a letter dated November 10th, the Union again requested that the City negotiate with the Union. There is no evidence that the Union has attempted to show the City that it currently represents a majority of the clerical workers. -2- ____________________________________________________________________________________ 5. On November 18, 1980, the City filed pursuant to 26 M.R.S.A. 967(2) a petition for an election in the clerical employees bargaining unit. The petition states that since no contract had been negotiated in the 10 years that the Union had been the bargaining agent, there should be an election to determine whether the employees wished to be represented by the Union. On December 10th, the Union filed a letter with the Board, asking that the petition for election be dismissed on the ground that the Municipal Public Employees Labor Relations Act does not allow an employer to petition for an election in a bargaining unit represented by a certified bargaining agent. 6. The case was assigned to a hearing examiner, who held a hearing on the election petition on April 14, 1981. The Union refused to participate in the hearing in order to protect its "legal position." The hearing examiner issued his report on June 2, 1981, finding that the petition for election was a proper filing which allowed him to review the appropriateness of the bargaining unit. After reviewing the changes in City departments and job classifications which occurred over the 10 year period, the hearing examiner concluded that the original clerical workers bargaining unit was no longer appropriate for purposes of collective bargaining. The hearing examiner ruled that since the bargaining unit was no longer viable, it was not necessary for him to act on the petition for election. The Union filed a timely appeal pursuant to 26 M.R.S.A. 968(4) on June 4, 1981. 7. There have been a number of changes in the City's organizational structure and job classification system since 1970. For example, several new departments and offices employing clerical workers have been created. Some of the job classifica- tions included in the original unit have been changed, and a number of new job classifications, some of which may entail clerical work, have been created. Which of the current job classifications should be included in the clerical workers bar- gaining unit remain wholly unclear. Only one employee of the 13 originally included in the unit still holds a unit position. DECISION This case presents the questions whether a public employer may properly file a petition for an election in a bargaining unit which is represented by a certified bargaining agent, and, if so, how this Board should process the petition. We hold -3- ____________________________________________________________________________________ that the hearing examiner correctly found that the City's petition for election was properly filed, but that he erred in ruling the bargaining unit no longer viable and in finding it unnecessary to act on the petition. Since the election petition was a valid filing, the hearing examiner should have determined an appro- priate bargaining unit of clerical workers and conducted a representation election for the unit. We will deny the Union's appeal in part and grant the appeal in part, and remand this proceeding to the Executive Director for determination of an appro- priate bargaining unit and the scheduling of a representation election. The hearing examiner correctly ruled that the City's petition for election was a proper filing authorized by 26 M.R.S.A. 967(2). Section 967(2) states in per- tinent part: "The executive director of the board, or his designee, upon signed request of a public employer alleging that one or more public employees or public employee organizations have presented to it a claim to be recognized as the representative of a bargaining unit of public employees, shall conduct a secret ballot election to determine whether the organization represents a majority of the members in the bargaining unit." Section 967(2) is modeled after and is analogous to Section 9(c)(1)(B) of the National Labor Relations Act, which states: "Whenever a petition shall have been filed . . . by an employer, al- leging that one or more individuals or labor organizations have presented to him a claim to be recognized as the representative . . . the Board shall investigate such petition and . . . [depending on the results of the investigation]. . . shall direct an election by secret ballot." 29 U.S.C.A. 159(c)(1)(B). There has never been any question that Section 9(c)(1)(B) allows an employer to file an election petition to test a certified union's continued majority status. See, e.g., United States Gypsum Co., 157 NLRB 652, 655-656 (1966); Whitney's, 81 NLRB 75, 77 (1949). Similarly, we do not see any question that Section 967(2) grants public employers the same right, particularly since the construction placed on the national act is "persuasive" when an analogous provision of Maine's act is under consideration. State v. Maine Labor Relations Board, 413 A.2d 510, 514 (Me. 1980). Furthermore, there is no support for the Union's position that a public em- ployer is authorized to file an election petition only when the bargaining unit not represented by a certified bargaining agent. The Union has not cited a single authority in support of its argument, and its position, which would severely limit -4- ____________________________________________________________________________________ the right of public employers to file election petitions, is contrary to the plain language of Section 967(2). Were the Union's position the law, then public employers could never challenge the majority status of a union once the union was certified as the bargaining agent of the employer's employees. This situation could in some cases force public employers to bargain with a union which did not represent a majority of the employees. Such bargaining would result in a prohibited practice under Section 964(1)(E) and would violate the public policy stated in the Act. See Section 962(2) and 967(2). We accordingly conclude that the City's petition for election is a proper filing authorized by Section 967(2).[fn]1 The Union's appeal on this point must be denied. We agree, however, with the Union's contention that the hearing examiner erred by simply declaring the clerical workers bargaining unit no longer viable and by not acting on the petition for election, although we conclude that actions different than those urged by the Union are required. Plainly the hearing examiner was correct in determining that the bargaining unit determined in 1970 is no longer appropriate for purposes of collective bargaining within the meaning of Section 966(1); as more fully detailed in the hearing examiner's report, the changes in the original bargain- ing unit positions along with the new job classifications created by the City make the present composition of the bargaining unit entirely unclear. However, this de- termination does not justify the hearing examiner's declaration that the bargaining unit was no longer viable or his decision that it was not necessary to act on the petition for election. The standard for determining whether to conduct a representation election when an employer files an election petition to question the majority of a previously certified incumbent union is whether the employer can, "in addition to showing the union"s claim for continued recognition, . . . demonstrate by objective considera- tions that it has some reasonable grounds for believing that the union has lost its majority status since its certification." United States Gypsum Co., supra at 656; __________ 1. The Union's fallacious argument that the City's petition is an improper "decertification petition" results from the Union's failure to recognize that Section 967(2) authorizes public employers to file election petitions to test a certified union's continued majority status. Under Section 967(2), only public employees are authorized to file decertification petitions. The City's petition does not purport to be a decertification petition. -5- ____________________________________________________________________________________ see also United States Postal Service, 256 NLRB No. 95, 107 LRRM 1249, 1250 (1981), Milwaukee Independent Meat Packers Association, 223 NLRB 922, 923 (1976). Here the City clearly has made the required showings and accordingly is entitled to an elec- tion. First, the Union's August 29th and November 10th demands that the City negotiate a contract with the Union constitute claims for continued recognition. See, e.g., Jewett & Sherman Co., 110 NLRB 806, 807 (1954). Second, the fact that the Union did not attempt to represent the clerical workers for over 10 years more than adequately demonstrates by objective considerations that the City has reasonable grounds for be- lieving the Union has lost its majority status. The City does not have to be correct in thinking that the Union has lost its majority status, it merely has to have reason- able grounds for believing that majority support has been lost. Considerable changes in personnel and in the City's organizational structure and job classifications have occurred during this 10 year period, and the Union has not attempted to show that it currently represents a majority of the clerical workers. The lengthy absence of any effort by the Union to represent the workers plainly gives reasonable grounds for questioning whether a majority of the clerical workers still support the Union, par- ticularly in light of the personnel and job classification changes which have occurred. Since the City's petition was a valid filing and since it met the requirements for obtaining an election, the hearing examiner erred in not proceeding to an election on the basis of the petition. Since the composition of the bargaining unit is unclear, the hearing examiner was obligated by Section 967(2) to determine an appropriate bargaining unit before proceeding to the election; "A necessary incident to conducting a secret ballot election is that 'a bargaining unit' of public employees be defined." City of Bangor v. Local 1599, IAFF, Case No. 80-A-03 (July 18, 1980). Without such a determ- ination, it would be impossible to determine which employees are eligible to vote in the election. We accordingly grant the Union's appeal on the point that the hearing examiner erred by declaring the bargaining unit no longer viable and by not acting on the City's petition for election. The hearing examiner was required by Section 967(2) to determine an appropriate bargaining unit and hold a representation election for the unit. There is no basis for the Union's argument that the election petition should be dismissed and the City ordered to bargain with the Union as the collective -6- ____________________________________________________________________________________ bargaining agent for the City's clerical workers. Since the City has satisfied the prerequisites for obtaining an election to test the Union's majority status, this Board is statutorily required to conduct an election. Since the City has shown that reasonable grounds exist for good faith doubt as to the continuing majority status of the Union, it is not obligated to bargain with the Union until such time as the Union's majority status has been reestablished. See, e.g., Bellwood General Hospi- tal, Inc. v. NLRB, 105 LRRM 2410, 2412 (7th Cir. 1980); Pride Refining, Inc. v. N.L.R.B., 555 F.2d 453, 459 (5th Cir. 1977). Given the present posture of this matter, we see no other alternative but to remand the proceeding to the Executive Director with the instructions that he or his designee determine an appropriate bargaining unit of City of Augusta clerical workers and conduct a representation election for this bargaining unit as soon as practical. ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4), it is ORDERED: 1. The Union's appeal is denied in part and granted in part. The hearing examiner correctly determined that the City's petition for election was a valid filing, but erred by simply declaring the clerical workers bargaining unit no longer viable and by not acting on the petition for election. 2. The hearing examiner's report is modified to provide that this proceed- ing is remanded to the Executive Director with the instructions that he or his designee determine an appropriate bargaining unit of City of Augusta clerical workers and conduct a representation election for the unit as soon as practical. Dated at Augusta, Maine this 25th day of September, 1981. MAINE LABOR RELATIONS BOARD The parties are advised of their right pursuant to 26 M.R.S.A. 968(4)and 972 /s/_______________________________________ to seek review by the Super- Edward H. Keith, Chairman Court of this decision by filing a complaint in accordance with Rule 80B /s/_______________________________________ of the Rules of Civil Pro- Don R. Ziegenbein, Employer Representative cedure within 30 days after receipt of this decision. /s/_______________________________________ Wallace J. Legge, Employee Representative -7- ____________________________________________________________________________________