STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 81-A-04 Issued: September 17, 1981 __________________________ ) COUNCIL NO. 74, AMERICAN ) FEDERATION OF STATE, ) COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO ) DECISION AND ORDER ) ON ELECTION APPEAL and ) ) CITY OF LEWISTON ) __________________________) This is an appeal by Council No. 74 of the American Federation of State, County and Municipal Employees, AFL-CIO (Union) of a certification of the results of a repre- sentation election, issued pursuant to 26 M.R.S.A. 967(2) on June 8, 1981 by the Executive Director of the Maine Labor Relations Board. The Executive Director deter- mined that a voter challenged by the Union at the June 5, 1981 election was eligible to vote, and that, counting the challenged voter's ballot cast against the Union, the results of the election stood at a 5 to 5 tie. Since the Union did not receive a majority of the votes cast, the Executive Director certified that no bargaining agent was elected. The Union contends on appeal that the Executive Director erred in ruling the challenged voter eligible to vote because the voter was retired at the time of the election, and because the election officer mishandled the challenged ballot during the election. A hearing on the appeal was held on June 26, 1981, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representa- tive Wallace J. Legge. The Union was represented by Stephen P. Sunenblick, Esq., and the City of Lewiston (City), the employer of the employees for whom the repre- sentation election was held, by Frederick G. Taintor, 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). [-1-] ______________________________________________________________________________________ The City is a "public employer" as defined in 26 M.R.S.A. 962(7). The jurisdic- tion 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 May 12, 1981, the Maine Labor Relations Board scheduled a representation election for June 5, 1981 for the supervisory command officers employed by the Lew- iston Police Department. Printed on the ballot for the election were two choices, reading: "I desire to be represented by Council #74, American Federation of State, County and Municipal Employees, AFL-CIO" and "I desire No Representative." 2. Captain Normand Cloutier, a member of the supervisory command officers bargaining unit, worked his last day for the Police Department on Friday, May 15, 1981. From May 16 to June 14, 1981, Cloutier was paid for his accumulated vacation time. Cloutier was eligible to retire on June 1, 1981, having on that date served twenty-two years with the Police Department, and could have on June 1st received a "lump sum" check for all of his accumulated vacation and sick leave time. How- ever, after talking with the City's Personnel Director several times in late April and early May, 1981, Cloutier decided to remain on the payroll until mid-June so that he could be credited with additional vacation and sick leave days for the month of June. City rules provide that employees who receive 80 hours of compensa- tion during a month are credited with vacation and sick leave time for that month. Thus, by being paid until June 14th, Cloutier received an additional 1-1/2 days of vacation time and an additional day of sick leave. Cloutier received his final paycheck on June 24, 1981, covering his remaining vacation days and his accumulated sick leave time. 3. On June 2, 1981, Cloutier submitted his letter of resignation to the Chief of Police. The letter states that Cloutier had completed his twenty-two years of service and that he planned to retire effective Saturday, June 6, 1981. Cloutier turned his weapon and equipment in to the Police Department on June 8, 1981. Police Department officers who are on vacation are subject to be called in to work in the event of an emergency. Cloutier was not called in during the period when he was receiving his accumulated vacation pay. 4. Cloutier's name was included on the list of eligible voters prepared by -2- ______________________________________________________________________________________ the City for the June 5th election. When Cloutier appeared to vote at the election, the Union's observer challenged his eligibility to vote on the ground that he had retired from the Department. The Board's election officer permitted Cloutier to vote pursuant to the "challenged ballot" procedure set forth in Rule 3.06(A) of the Board's Rules and Procedures, 12 - 180 CMR Chapt. 3, 3.06(A). Cloutier was given a ballot which he marked and returned to the election officer, who put the ballot in a "challenged ballot" envelope, identified the voter and the cause of the chal- lenge on the envelope, and then placed the envelope on the table next to the ballot box. Upon counting the unchallenged ballots at the conclusion of the election, the election officer found that 5 officers voted in favor of the Union, while 4 officers voted for no representation. Since the challenged ballot could affect the outcome of the election, the election officer ruled that he would deliver the challenged ballot envelope to the Executive Director for a determination regarding Cloutier's eligibility. 5. On June 8th, the Executive Director reviewed the circumstances surround- ing the challenged ballot, determining that since Cloutier was on the City's pay- roll and was subject to call on June 5th, he was eligible to vote even though he had not worked for several weeks. The challenged ballot envelope was opened and Cloutier was found to have voted for no representation. The Executive Director accordingly ruled that the election resulted in a 5 to 5 tie, and certified, in a report and certification issued June 8th, that no bargaining agent was elected. Pursuant to 26 M.R.S.A. 968(4), the Union filed a timely appeal on June 8, 1981. DECISION This case provides us with our first opportunity to interpret our rule con- cerning voter eligibility in representation elections. Rule 3.02(A) of our Rules and Procedures states: "The employees eligible to vote shall be those who were employed on the last pay date prior to the filing of the petition and who remain on the payroll on the date of the election, and meet the requirements set forth in Title 26, M.R.S.A., 962, 6." 12-180 CMR Chapt. 3, 3.02(A). The Union urges that we construe this rule the same way that the National Labor Relations Board (NLRB) construes its voter eligibility rule - a construction which provides that an employee must work on the initial eligibility date and on the date of the elec- tion to be eligible to vote. The City contends that we should adopt a literal interpretation to the effect that employees on the payroll at the election date -3- ______________________________________________________________________________________ are eligible even if they have ceased working. After carefully considering the propriety of these two interpretations, we have decided that a construction consistent with the NLRB's interpretation is the sounder approach. Since Cloutier was not working on June 5th and since he had no reasonable expectation of returning to work at the Police Department, we find he was not eligible to vote. We will grant the Union's appeal and remand this proceeding to the Executive Director for issuance of a certification certi- fying that the Union was selected the bargaining agent of the superior officers command unit by a vote to 5 to 4.[fn]1 In one of its first decisions, the NLRB promulgated the following rule re- garding voter eligibility: "Those eligible to vote shall be such employees on such payroll and those employed for such work between that [initial eligibility] date and the date of this decision, excepting those who have quit or have been discharged for cause during such period." Wayne Knitting Mills, Inc., 1 NLRB 53, 55 (1935). Our voter eligibility rule, promul- gated in Rule 3.02(A), is based on the NLRB rule and should be interpreted the same __________ 1. The Union's argument that Cloutier's ballot must be set aside because the election officer mishandled the ballot is meritless. The record shows that in allowing Cloutier to vote by the challenged ballot procedure, the elec- tion officer departed from the provisions of Rule 3.06(A), 12 - 180 CMR Chapt. 3, 3.06(A), in two respects: 1) the election officer rather than Cloutier sealed Cloutier's ballot in the challenged ballot envelope, and 2) the envelope was not deposited in the ballot box by Cloutier but in- stead was placed on the table next to the ballot box by the election officer. While we do not condone any failure to observe the election rules, the standard against which we measure the election officer's actions is "whether the manner in which the election was conducted raises a reasonable doubt as to the fairness and validity of the election." Polymers, Inc., 174 NLRB 282, enforced 414 F.2d 999 (2nd Cir. 1969), cert. denied 396 U.S. 1010 (1970). Nothing shown by the Union raises any doubt as to the fairness or validity of the election, and we conclude that the fact that the officer did not strictly observe the rules and regulations does not by itself warrant the setting aside of Cloutier's ballot or the ordering of a new elec- tion. -4- ______________________________________________________________________________________ way that the NLRB's rule is interpreted.[fn]2 The NLRB and the United States Courts of Appeal have consistently interpreted the NLRB standard to require that "an employee must work both on eligibility date and on the election date" to be eligible to vote. Union Paper Goods Co. v. NLRB, 102 LRRM 2218 (9th Cir. 1979). Employees not working on election day because of illness, vacation, leave of absence, layoff, or some other reason are eligible to vote if they have a "rea- sonable expectation of employment within a reasonable time in the future." Whiting Corp. v. NLRB, 200 F.2d 43, 45 (7th Cir. 1952); see also NLRB v. New England Lithographic Co., Inc., 589 F.2d 29, 33 (1st Cir. 1978). An employee who terminates his employment effective on a date subsequent to the election but who stops working prior to the election and is being paid on the election date for accumulated time is not eligible to vote even though he is still on the payroll: "the Board's test . . . is the clear, objective fact of actual work on the eligibility dates." Roy N. Lotspeich Publishing Co., 204 NLRB 517, 518 (1973). The Courts of Appeals have found this test "wholly consistent with the statute," and have approved the test on the ground that "no more objective standard [is] available." NLRB v. General Tube Co., 331 F.2d 751, 753 (6th Cir. 1964). The "actual work" interpretation employed in the private sector plainly is applicable to our voter eligibility rule. By providing that eligible employees are those who are employed on the last pay date prior to the filing of the petition and who remain on the payroll on the election date, Rule 3.02(A) contemplates that an eligible employee will remain employed on the election date. The phrase "on the payroll" implies that the employee must on election day be receiving pay for current services, as opposed to receiving compensation for prior services, such as accumulated vacation or sick leave time. Employees who are not working on the election date but who remain on the payroll receiving compensation for services previously rendered are not eligible. We find the "actual work" interpretation of Rule 3.02(A) more appropriate than the "on the payroll" construction urged by the City for several reasons. First, the "actual work" interpretation is an easily-applied and understood standard which applies to both the initial eligibility date and the election date. __________ 2. Neither the National Labor Relations Act (NLRA) nor the Municipal Public Employees Labor Relations Act (MPELRA), the statute under which this case arises, prescribe standards for determining voter eligibility. As noted, the NLRB has promulgated its voter eligibility rule in its case law, while we have issued our rule pursuant to our rulemaking authority. We have noted that the unit determination and repre- sentation election sections of the NLRA and MPELRA are "analogous." City of Bangor v. Local 1599, IAFF, Case No. 80-A-03 at 3-4 (July 18, 1980). Compare 29 U.S.C.A. Section 159 with 26 M.R.S.A. Sections 966 and 967. -5- ______________________________________________________________________________________ There is a considerable body of case law applying the standard in diverse factual situations, which will provide interested parties and this Board with ample guid- ance. To the best of our knowledge, no other jurisdiction in the country applies the "on the payroll" interpretation, so we would be charting a new course in untested waters were we to adopt that standard. Second, although there is not the slightest hint of wrongdoing in the instant case, the "on the payroll" test could allow improper employer-employee collusion in establishing voter eligibility. We can envision cases in which the employer would keep an employee who had stopped working on the payroll merely for the purpose of voting in an upcoming election. The courts frown on proposed standards which would allow "employer unilateral control over voter eligibility." NLRB v. New England Lithographic Co., Inc., supra at 36. The "actual work" standard properly leaves the matter up to the employee,who must decide whether to continue to work until election day. In short, we interpret Rule 3.02 to require that an employee actually work on the initial eligibility date and on the date of the election to be eligible to vote, or, if not working on election day, to have a reasonable expectation of returning to work within a reasonable time. Applying this interpretation to Captain Cloutier's situation, it is plain that he was not eligible to vote at the June 5th election. His last day of work for the City was May 15, 1981. It is undisputed that he intended to retire, as evidenced by his June 2nd letter and his discussions about retirement with the Personnel Director in late April and early May. The reason that he remained on the payroll on June 5th was to accumulate enough compensated hours in June to be credited with additional vacation and sick leave time. He did not actually work on June 5th or thereafter, and had no reasonable expectation of returning to work, as he retired as of June 6th. The fact that Cloutier was subject to call on June 5th is not sufficient rea- son to say he had a reasonable expectation of returning to work. He was not called in to work on June 5th or on any other day after his last day of work on May 15th, and he was retired as of June 6th. Equally immaterial is the fact that Cloutier re- tired effective the day after the election. The employee in Roy N. Lotspeich Pub- lishing Co., supra, terminated his employment effective on a date subsequent to the election but was declared ineligible since he was not working on election day. Unlike the City, we do not see any meaningful distinction in the fact that the employee in Lotspeich was being paid accumulated holiday pay on election day while -6- ______________________________________________________________________________________ Cloutier was receiving accumulated pay for vacation time. The principle enunciated in Lotspeich that an employee who is on the payroll but who has ceased working on election day is not eligible to vote is fully applicable in the present case. The fact that Cloutier may have considered himself to be an employee on election day also is not controlling. The voters declared ineligible in the NLRB and court cases presumably considered themselves employees when they voted, but such subjective beliefs were not determinative of their eligibility. See, e.g., Whiting Corp. v. NLRB, supra at 45. Since Cloutier did not work on June 5th and since he had no reasonable expec- tation of returning to work at the Police Department, we conclude he was not eligi- ble to vote in the representation election. With his ballot set aside, the result of the election is 5 votes to 4 in favor of the Union. We will grant the Union's appeal and remand this proceeding to the Executive Director with instructions that Cloutier's ballot be set aside and the Union certified as the bargaining agent for the superior command officers bargaining unit. 0RDER 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 granted. Captain Cloutier was not eligible to vote in the June 5, 1981 representation election and his ballot must be set aside. 2. This proceeding is remanded to the Executive Director with instructions that Captain Cloutier's ballot be set aside and the Union certified, by a 5 to 4 vote, as the bargaining agent for the superior officers command unit. Dated at Augusta, Maine this 17th day of September, 1981. The parties are advised of MAINE LABOR RELATIONS BOARD their right pursuant to 26 M.R.S.A. 968(4) and 972 to seek a review by the Su- /s/_______________________________________ perior Court of this deci- Edward H. Keith, Chairman sion by filing a complaint in accordance with Rule 8OB of the Rules of Civil /s/_______________________________________ Procedure within 30 days Don R. Ziegenbein, Employer Representative after receipt of this decision. /s/_______________________________________ Wallace J. Legge, Employee Representative -7- ______________________________________________________________________________________