IBEW v. Fox Islands Electric Cooperative, No. 87-A-01, affirming 86-UD-10. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 87-A-01 Issued: February 27, 1987 ____________________________________ ) INTERNATIONAL BROTHERHOOD OF ) ELECTRICAL WORKERS, AFL-CIO, ) ) Appellant, ) ) v. ) DECISION AND ORDER ) FOX ISLANDS ELECTRIC COOPERATIVE, ) INC., ) ) Appellee. ) ____________________________________) Pursuant to 26 M.R.S.A. 968(4) (Pamph. 1986) and in accordance with Maine Labor Relations Board (Board) Unit Determination Rule 1.10, this appeal was commenced on August 27, 1986, when Wayne W. Whitney, Attorney for Appellant International Brotherhood of Electrical Workers, AFL-CIO (IBEW), filed a Notice of Appeal of a Hearing Examiner's Unit Determination Report (Report) issued on August 15, 1986. That Report dismissed the IBEW'S petition seeking the creation of a bargaining unit composed of all the full-time and regular part- time Linemen, Meter Readers, Administrative Clerks, Office Clerks and Billing Clerks--excluding Professional Employees, CETA Employees and Guards--employed by Fox Islands Electric Cooperative, Inc. (Co-op). In the proceeding before the Hearing Examiner, the IBEW contended that the Co-op is a "public employer" within the meaning of 26 M.R.S.A. 962(7) (Pamph. 1986) because it is either a "municipality" or a "body acting on behalf of any municipality or town or any sub- division thereof." The IBEW also contended that the Co-op is estopped by the principles of res judicata or collateral estoppel from denying its public employer status because it had earlier successfully argued in proceedings before the National Labor Relations Board (NLRB) that the Co-op is a political subdivision of the State of Maine and hence does not come within the jurisdiction of the NLRB. The Hearing Examiner rejected each of these contentions. The IBEW appeals the Hearing Examiner's finding that neither res judicata nor collateral [-1-] ______________________________________________________________________ estoppel applies to prevent the Co-op from denying that it is a public employer within the meaning of the Maine Municipal Public Employees Labor Relations Law (MPELRL), 26 M.R.S.A. ch. 9-A (1974 & Pamph. 1986). The IBEW appeals also the Hearing Examiner's finding that the Co-op is not a "body acting on behalf of any municipality or town or any subdivision thereof." 26 M.R.S.A. 962(7) (Pamph. 1986). The IBEW has not appealed the Hearing Examiner's finding that the Co- op is not a "municipality." Upon suggestion of the IBEW that the issues on appeal raise legal and not factual questions, the parties agreed to a schedule for the submission of initial and reply briefs addressing the issues on appeal. The last of these briefs was filed with the Board on October 29, 1986. Neither party requested oral argument. The case was deliberated on November 26, 1986, by the Board consisting of Edward S. Godfrey, presiding, Thacher E. Turner, Employer Repre- sentative, and George W. Lambertson, Employee Representative. JURISDICTION The jurisdiction of the Board to hear and decide this appeal is conferred by 26 M.R.S.A. 968(4) (Pamph. 1986). Neither party has contested the Board's jurisdiction to hear and determine this appeal. DECISION We agree with the determination of the Hearing Examiner that the decision of the NLRB in Fox Islands Electric Cooperative, Inc. and International Brotherhood of Electrical Workers, No. 1-RC-18,536, (NLRB Region 1, Aug. 19, 1985), does not settle the issue of our juris- diction in this case by application of principles of res judicata or collateral estoppel. The issue before the National Board was whether the Fox Islands Electric Cooperative, Inc., is a "subdivision of the State" within the meaning of the National Labor Relations Act, whereas the issue before us is whether the cooperative is a "public employer" within the meaning of the Maine MPELRL. Since nothing in the Maine Law provides, or has the effect of providing, that the jurisdiction of the Maine Labor Relations Board shall extend to any case in which the -2- ______________________________________________________________________ federal board lacks jurisdiction, the jurisdictional issues in the state and federal proceedings are substantially different. The argu- ment in favor of applying res judicata or collateral estoppel there- fore lacks merit. We agree with the decision and reasoning of the Hearing Examiner in concluding that the definition of the term "public employer" in the Maine Law does not include the Fox Islands Electric Cooperative, Inc. In his Unit Determination Report, at pages 9 and 10, the Hearing Examiner reasoned as follows: The Union's second major contention is that the Coop- erative is a "public employer," within the meaning of 26 M.R.S.A. 962(7) of the Act, because the Employer is a "body acting on behalf of any municipality or town or any subdivision thereof. . . ." The Labor Relations Board has held that general agency principles should be applied in determining whether an entity is "acting on behalf of" a public employer. Baker Bus Service and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determin- ation Report, slip op. at 5 (Oct. 6, 1978), aff'd sub nom. Baker Bus Service, Inc. v. Keith, 416 A.2d 727 (Me. 1980). The Law Court held that the critical element for deter- mining whether an organization is acting on behalf of a municipality is whether the former "acted as a 'servant' subject to the City's control or right to control." 416 A.2d, at 731. The evidence cited in this paragraph persuades the hearing examiner that the Cooperative is not acting on behalf of a public employer, within the context of 962(7) of the Act. The Cooperative does not have a contract to provide service to the towns of Vinalhaven and North Haven. The two towns, whose geographic area coincides with the Employer's service area, did not join the Cooperative until approximately six months after the Cooperative was created. The municipalities of Vinalhaven and North Haven can exer- cise no greater control over the management and operations of the Cooperative than do any of the Cooperative's other members. Each of the members has the same right to attend the annual membership meetings and to vote on the same one meter - one vote basis. The member municipalities may neither appoint nor remove members of the Cooperative's Board of Trustees. No evidence was presented that said municipalities have made significant financial contributions to the Cooperative or have provided land or equipment to the Cooperative. The hearing examiner, in light of the above evidence, holds that the cooperative is not "acting on behalf of" a public employer, within the meaning of 26 M.R.S.A. 962(7). -3- ______________________________________________________________________ Since the Cooperative is neither a municipality nor a body acting "on behalf of" a public employer, within the meaning of 26 M.R.S.A. 962(7), the hearing examiner must conclude that the Fox Islands Electric Cooperative, Inc., is not a public employer within the definition of 962(7) of the Act. Having held that the Employer is not a covered public employer, the Board has no jurisdiction to fashion an appropriate bargaining unit of the Cooperative's employees. ORDER On the basis of the foregoing 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) (Pamph. 1986), it is hereby ordered that the appeal of the Fox Islands Electric Cooperative, Inc., filed August 27, 1986, be denied. Dated at Augusta, Maine, this 27th day of February, 1987. MAINE LABOR RELATIONS BOARD The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Pamph. /s/__________________________ 1986), to seek review of this Edward S. Godfrey Decision and Order by the Chairman Superior Court. To initiate such a review an appealing party must both file a complaint with the Superior /s/__________________________ Court within thirty (30) days Thacher E. Turner of the date of issuance hereof, Employer Representative and otherwise comply with the requirements of Rule 808 of the Maine Rules of Civil Procedure. /s/__________________________ George W. Lambertson Employee Representative -4- ______________________________________________________________________