AFSCME and MSEA and City of Lewiston and Lewiston School District,
Interim Unit Determination Report, April 17, 1985, Unit Determination
Report, July 12, 1985, both affirmed by the Board in 85-A-03.
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 85-UD-20
Issued: April 17, 1985
COUNCIL NO. 74, AMERICAN )
FEDERATION OF STATE, COUNTY )
AND MUNICIPAL EMPLOYEES, AFL-CIO )
MAINE STATE EMPLOYEES ASSOCIATION ) INTERIM UNIT
) DETERMINATION REPORT
CITY OF LEWISTON )
LEWISTON SCHOOL COMMITTEE )
This unit determination proceeding was initiated on December 26,
1984 when Council 74, American Federation of State, County and
Municipal Employees, AFL-CIO, filed a petition for appropriate unit
determination, pursuant to Title 26 M.R.S.A. 966. The first day of
hearing on the petition was conducted at the Lewiston City Hall on
January 24, 1985. At that time Council 74 and the City of Lewiston
made opening statements and outlined what they perceived as being the
issues relevant hereto. On February 1, 1985, the City of Lewiston
filed a Motion for Indefinite Stay of Proceedings to delay further
hearings and action in this matter, pending resolution of two actions
between the City of Lewiston and the Lewiston School Committee which
are before the Androscoggin Superior Court (Docket Nos. CV-84-384 and
CV-84-395). The parties were afforded full opportunity to make argu-
ment on the merits of the City's motion through written memoranda, the
last of which was filed on March 11, 1985. This interim unit deter-
mination report will be limited to consideration of the merits of the
The Petitioner, Council 74, American Federation of State, County
and Municipal Employees, AFL-CIO, is a lawful organization which has
as its primary purpose the representation of public employees in their
employment relations with employers, within the meaning of 26 M.R.S.A.
962(2). The Maine State Employees Association is the certified
bargaining agent, within the definition of 26 M.R.S.A. 962(2), for
the General Government Employees Bargaining Unit of the City of
Lewiston. The City of Lewiston or the Lewiston School Committee or
both of them are the public employer, within the definition of 26
M.R.S.A. 962(7), of those employees with school work sites in the
City of Lewiston, whose classifications are presently included in the
General Government Employees Bargaining Unit and which Council 74's
petition seeks to sever therefrom. The jurisdiction of the hearing
examiner to hear this matter and to make an appropriate unit deter-
mination decision herein lies in 26 M.R.S.A. 966.
The City of Lewiston's motion for indefinite stay of the instant
unit determination proceeding is based on the premise that the
Superior Court's decision, in the pending actions between the City of
Lewiston and the Lewiston School Committee, will be dispositive of an
important issue in this matter and that the Board should delay con-
sideration of this case until after the Court has ruled. The policy
arguments advanced in support of the motion are that a stay would
avoid the possibility of conflicting results, between the Court and
the Board, and that such delay would not prejudice the employees
involved in the present action because delay would maintain the status
quo. Although the Lewiston School Committee and the Maine State
Employees Association both argued in favor of the City's motion, none
of the motion's proponents cited any statutory authority or legal pre-
cedent in support of their contentions.
One of the issues currently before the Androscoggin Superior
Court, in civil action Docket Nos. CV-84-384 and CV-84-394, concerns
the identity of the public employer, within the meaning of 26 M.R.S.A.
962(7), of the individuals who are employed at school department
work sites in the City of Lewiston. Before the Court, the City of
Lewiston and the Lewiston School Committee are each contending that
they are the sole public employer of said employees. As an alter-
native to concluding that either is the sole public employer, the
Court could hold that the City and the School Committee are joint
employers for the aforementioned group of employees.
Council 74's unit determination petition seeks to sever those
employee classifications, having school department work sites and
which are included in the current Lewiston General Government
Employees bargaining unit, from said unit and, thereby, to create a
separate unit. The petition is based on the premise that the classi-
fications whose severance is sought have a different public employer
than do the other positions in the present unit. Allegedly, the
"school department" employees are employed by the Lewiston School
Committee while the "municipal" employees are employed by the City of
Lewiston, acting by and through its City Council. The Labor Relations
Board has stated that "[a] finding of a different public employer for
two groups of public employees would, in almost every case, require a
separate bargaining unit for each group. . . ." Auburn Firefighters
Association, Local 797, IAFF and City of Auburn, MLRB No. 83-A-O7,
at 6 (Dec. 5, 1983). Second, even if the "city" and the "school
department" employees in the current unit were found to have the same
employer, the nature of the public employer's organizational structure
would still be important, as one of the community of interest criteria
upon which the fate of Council 74's petition will turn. Council 74,
AFSCME and City of Brewer, MLRB No. 79-A-01, at 3-4 (Oct. 17, 1979);
cited with approval, Council 74, AFSCME and Teamsters Local Union
No. 48 and County of Cumberland, MLRB No. 84-A-04, at 11 n.2
(April 25, 1994).
The question now before the hearing examiner is who should act
first in determining the identify of the public employer of the
"school department" employees, the Superior Court or the Labor
Relations Board. The answer to this query may be found in the
doctrine of primary jurisdiction. The Supreme Judicial Court has
outlined that legal principle as follows:
"We most recently discussed the doctrine of primary
jurisdiction in State ex rel. Brennan v. R. D. Realty
Corp., Me, 349 A.2d 201, 206 (1975) where we stated that
the doctrine 'determines whether the Court or the agency
should make the initial decision.' The doctrine is
designed to resolve the question of who should act first.
Where the administration of a particular statutory scheme
has been entrusted to an agency, the Court will postpone
consideration of an action until the agency has made a
designated determination if such postponement will protect
the integrity of the statutory scheme. United States v.
Philadelphia Nat'l Bank, 374 U.S. 321, 83 S. Ct. 1715,
10 L.Ed.2d 915 (1963); Thompson v. Texas Mexican Ry. Co.,
328 U.S. 134, 66 S. Ct. 937, 90 L.Ed.2d 1132 (1946).
The functions of the State Employees Appeal Board are
within the scope of this doctrine."
Woodcock v. Atlass, 359 A.2d 69, 71 (Me. 1976). The Labor Relations
Board, like the State Employees Appeal Board mentioned above, is a
quasi-judicial body. State of Maine v. Maine Labor Relations Board,
413 A.2d 510, 512 (Me. 1980). Second, the Municipal Public Employees
Labor Relations Act ("Act"), 26 M.R.S.A. 961, et seq., is a com-
prehensive statutory scheme whose administration has been entrusted
to the Labor Relations Board. Sanford Highway Unit v. Town of
Sanford, 411 A.2d 1010, 1014 (Me. 1980).
The Act embodies the express legislative intent that "public
employees" have the right to join labor organizations of their own
choosing and to be represented by such organizations in collective
negotiations with their "public employer" for terms and conditions of
employment. The Act provides a uniform basis for the implementation
of that public policy. Easton School Committee v. Easton Teachers
Association, 398 A.2d 1220, 1223 (Me. 1979). Although the term
"public employer" is defined in Section 962(7) of the Act, the iden-
tity and nature of the "public employer" must, in the first instance,
be determined by the hearing examiner conducting proceedings pursuant
to 26 M.R.S.A. 966. That determination is then subject to review by
the Board and, thereafter, by the Superior Court. Baker Bus Service,
Inc. v. Keith, 416 A.2d 727, 730-731 (Me. 1980).
The proponents of the motion under consideration have argued that
the instant matter should be stayed, pending a judicial determination
of the "public employer," within the definition of 26 M.R.S.A.
962(7), of the Lewiston "school department" employees. In an
analogous case, the Superior Court dismissed a plaintiff's attempt
to establish, through a civil action in that forum, his status as a
"public employee" within the meaning of 26 M.R.S.A. 962(6). Citing
the doctrine of primary jurisdiction, the Supreme Judicial Court held
that the matter should have first been pursued before the Board and,
therefore, affirmed the Superior Court's action. Wone v. City of
Portland, 466 A.2d 1256, 1256-1257 (Me. 1983). The Law Court's deci-
sion is dispositive of the question before the hearing examiner. The
instant matter will not be stayed pending the outcome of the Superior
The proponents' reliance on Alternate Chairman Webber's stay of
the proceeding in Educational Directors' Unit of Lewiston v. City of
Lewiston, MLRB No. 85-03, as precedent for the relief which they are
seeking, is misplaced. When the subject matter of a prohibited prac-
tice complaint is already the subject of a civil action before a court
or is involved in a grievance arbitration proceeding and the court or
the arbitrator's decision may fully rectify the alleged prohibited
practice and obviate the need for the Board's action thereon, the
Labor Relations Board may, pursuant to Rule 4.13 of its Rules and
Procedures, defer action on the prohibited practice complaint pending
the outcome of the other proceedings. Greater Portland Transit
District v. Division 714, Amalgamated Transit Union, MLRB No. 78-29,
at 2 (July 11, 1978). The Board's Unit Determination Rules do not
contain a provision analogous to Rule 4.13 and the proponents were
unable to cite any other authority permitting the hearing examiner to
grant the relief sought through the motion. In the absence of such
authority and consistent with the Law Court's decision in Wone, supra,
the motion for indefinite stay of proceedings must be denied.
On the basis of the foregoing discussion and by virtue of and pur-
suant to the provisions of 26 M.R.S.A. 966, the hearing examiner
The Motion for Indefinite Stay of Proceedings filed
by the City of Lewiston in Case No. 85-UD-20, on
February 1, 1985, be and hereby is denied.
Dated at Augusta, Maine, this 17th day of April, 1985.
MAINE LABOR RELATIONS BOARD
Marc P. Ayotte
The parties are advised of their right, pursuant to 26 M.R.S.A.
964(4), to appeal this report to the full Labor Relations Board by
filing a notice of appeal with the Board within 15 days of the date of
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 85-UD-20
Issued: July 12, 1985
COUNCIL NO. 74, AMERICAN FEDERATION OF )
STATE, COUNTY AND MUNICIPAL EMPLOYEES, )
MAINE STATE EMPLOYEES ASSOCIATION, ) UNIT DETERMINATION REPORT
CITY OF LEWISTON, )
LEWISTON SCHOOL COMMITTEE. )
This unit determination proceeding was initiated on December 26,
1984 when Council No. 74, American Federation of State, County and
Municipal Employees, AFL-CIO (Council 74) filed petitions for
Appropriate Unit Determination and Bargaining Agent Election seeking
to represent a unit of employees employed by the Lewiston School
Committee (School Committee)/Lewiston City Council (City), occupying
the following classifications:
Lewiston School: Janitors I; Janitors II; Maintenance Person;
Senior Maintenance Person; Principal Clerks;
Account Clerks; Clerk Typists; Senior Prin-
cipal Clerk; Library Assistants; Store Keeper.
Through its petition Council 74 seeks to sever a portion of a unit of
the City of Lewiston's general government employees for which the
Maine State Employees Association (MSEA) was certified as exclusive
collective bargaining agent on March 18, 1983.
Hearing of the issues raised by the unit determination petition
commenced on January 24, 1985, with opening statements made by Council
74 and the City. Council 74's opening remarks indicated that identity
of the School Committee as the sole "public employer"[fn]1 of the
employees working at Lewiston school sites was a primary basis for its
requested severance. The hearing was immediately thereafter continued
by the Hearing Examiner.
On February 1, 1985, the City filed a motion requesting indefi-
nite stay of the unit determination proceeding pending resolution of
two actions before the Superior Court [Androscoggin Docket Nos.
CV-84-384 and CV-84-394] involving the City and the School Committee.
The identity of the public employer of employees employed at school
work sites in the City of Lewiston was averred to be one issue
before the Superior Court in these cases.
The basis of the City's request for stay was the City's conten-
tion that the unit determination proceeding, herein, necessarily
involves a determination of the identity of the public employer of the
employees in the sought-after unit, a determination expected to be
made in the pending court actions. Upon consideration of the argu-
ments of the parties addressing the propriety of the requested stay,
the Hearing Examiner denied the City's motion in an April 17, 1985
Interim Unit Determination Report. On May 1, 1985, the City appealed
the Hearing Examiner's motion ruling pursuant to 26 M.R.S.A. 968(4)
(Supp. 1984-85) and Maine Labor Relations Board Unit Determination
Rule 1.10. The Board provided all parties the opportunity to be heard
concerning the City's appeal on May 22, 1985. On June 6, 1985, the
Board issued a Report of Appellate Review of Interim Unit
Clarification Report affirming the Hearing Examiner's order denying
the City's motion for indefinite stay. The basis of the affirmance
was the Board's conclusion that the public employer status of the
School Committee is not dispositive but merely one of several factors
which must be taken into account in consideration of the appropriate-
1 The term "public employer" is defined in 26 M.R.S.A. 962(7)
(Supp. 1984-85) as follows:
"Public employer" means any officer, board, commission,
council, committee or other persons or body acting on
behalf of any municipality or town or any subdivision
thereof, or of any school, water, sewer or other district,
or of the Maine Turnpike Authority, or of any county or any
ness of the requested severance.
Hearing was reconvened by the undersigned Hearing Examiner, in the
Bureau of Labor Standards Conference Room, located on the seventh floor
of the State Office Building in Augusta, Maine, on July 11, 1985.
Council 74 was represented at the hearing by its Coordinator of
Field Services, John J Ezhaya; the Maine State Employees Association
(MSEA) was represented by Shawn C. Keenan, Esquire; the Lewiston School
Committee was represented by Brian C. Shaw, Esquire; and the City of
Lewiston was represented by Frederick G. Taintor, Esquire.
The following stipulations were reached by the parties in pre-
1. The MSEA is the certified bargaining agent of employees
in the Lewiston General Government Employees Bargaining
Unit within the meaning of 26 M.R.S.A. 962(2) (Supp.
2. Council 74 is an employee organization engaged in the
business of organizing and representing public employees
for purposes of collective bargaining, within the
meaning of 26 M.R.S.A. 962(2) (Supp. 1984-85).
3. The employees in the sought-after unit are public
employees within the meaning of 26 M.R.S.A. 962(6)
4. Either the City of Lewiston, the Lewiston School
Committee or both of them is (are) the public emplo-
yer(s) of public employees in the Lewiston General
Government Employees Bargaining Unit employed at
school work sites in the City of Lewiston within
the meaning of 26 M.R.S.A. 962(7) (Supp. 1984-85).
The Hearing Examiner's jurisdiction to conduct a unit determination
hearing herein, and to issue a report thereof, lies in 26 M.R.S.A.
966 (Supp. 1984-85).
The City introduced nine documentary exhibits for the purpose of
establishing for appeal, the nature of the controversy presently
pending before the Law Court between the City and the School Committee.
These documents were admitted into evidence for this purpose upon the
parties' unanimous stipulations of admissibility and authenticity. The
Law Court proceeding concerns the determination of the validity of a
collective bargaining agreement alleged to have been entered into by
the School Committee and a group of school employees, which has pur-
portedly been recognized by the School Committee as a collective
bargaining unit of "Educational Directors." The underlying issue in
that controversy has been agreed by the City and the School Committee
to be one of the School Committee's final authority to enter into
collective bargaining agreements involving Lewiston school employees
in light of the provisions qf Section 5.03(c) of the City of
Lewiston's Charter, which states:
Any contract negotiated with any bargaining agent represent-
ing employees of the school department, pursuant to the Maine
Public Employees Labor Relations Law, shall require approval
by the city council.
At hearing Council 74's non-attorney representative stated that
he had no idea that the hearing would become so "legally complicated
and technical" and moved for a continuance on the basis of the need
for legal advice concerning the documents submitted by the City. A
joint motion was made on behalf of all of the parties that the hearing
be postponed and deferred pending the Law Court's decision in the case
pending before it involving the School Committee and the City Council.
Both motions were denied.
All parties were afforded full opportunity to present evidence
and argument. No further evidence was tendered through testimony,
documents, exhibits or otherwise. Upon inquiry no party expressed a
desire to file post-hearing briefs or to make oral argument.
The opportunity for Council 74 to associate legal counsel prior
to hearing in this matter has been abundant. The material issues,
herein, have not changed significantly since the original hearing com-
menced on January 24, 1985. Additionally, the issue of the identity
of the "public employer" of employees in the sought-after unit remains
only one of several factors which must be taken into consideration in
determining the appropriateness of the requested severance.
Accordingly, based upon the lack of presentation of sufficient
evidence to support the requested severance, I make the following
On the basis of the foregoing and by virtue of and pursuant to
the provisions of 26 M.R.S.A. 966 (Supp. 1984-85):
The petition for Appropriate Unit Determination filed by
Council No. 74, American Federation of State, County and
Municipal Employees, AFL-CIO, on December 26, 1984, in Case
No. 85-UD-20 is hereby DISMISSED.
Dated at Augusta, Maine, this 12th day of July, 1985.
M. Wayne Jacobs
The parties are advised of their right, pursuant to 26 M.R.S.A.
968(4) (Supp. 1984-85) and Board Unit Determination Rule 1.10, to
appeal this report to the full Labor Relations Board by filing a
notice of appeal with the Board within fifteen calendar days of the
date of this report.