STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 87-A-04 Issued: January 7, 1987 _____________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) ) Complainant, ) ) and ) ) AFSCME, COUNCIL 93, ) ) DECISION AND ORDER Intervenor, ) ) and ) ) PORTLAND WATER DISTRICT, ) ) Public Employer. ) _____________________________________) In response to the September 29, 1986 filing of petitions by AFSCME seeking bargaining agent/decertification elections among units of both Operations/Construction and Clerical/Technical employees of the Portland Water District (District), an agent of the Maine Labor Relations Board (Board) conducted simultaneous secret ballot elections between 1:30 and 3:30 p.m., on Thursday, November 13, 1986, in the District's basement conference room, located at 225 Douglass Street in Portland, Maine. As a result of these elections, in which 114 Operations and Construction employees and twenty-five Clerical and Technical employees voted, certifications were issued to the incumbent Teamsters in the Operations and Construction unit and to the peti- tioning AFSCME in the Clerical and Technical unit. The prevailing electoral margins were seven and two votes, respectively. On November 18, 1986, David L. Berg, Secretary/Treasurer of Teamsters Local Union No. 48, filed an "Objection to Conduct of Election," which alleges that two Clerical and Technical unit employees otherwise eligible to vote in the election were disenfran- chised in reliance on an altered Board election Notice. More specifi- cally, Berg alleges that the Notice was altered to reflect a one-hour extension of the time for the closing of the polls, from 3:30 p.m. to [-1-] ______________________________________________________________________ 4:30 p.m., and that employees Warren C. Hamilton, Jr., and Mark Ward entered the polling area, at 3:40 p.m,, after the polls were closed, and were refused the opportunity to vote by the Board's election agent. Berg also suggests that the other two non-voting eligible Clerical and Technical unit employees may well have been similarly disenfranchised. Berg states that "[b]ecause the election was not properly conducted in a manner in which all eligible voters were allowed to exercise their right to vote . . . the election . . . is tainted." On this basis, Berg requests the results be discounted and the Clerical and Technical unit election be reconducted. On November 20, 1986, AFSCME filed a response to the Teamsters' election objections which states that "since the two units involved do exist under a close proximity of interest . . . if the Board finds that the sterile atmosphere of the election was tainted by any means . . . a new election by the Board must involve both units." On November 25, 1986, the District filed a response. The District's response contains affidavits by Ward and Hamilton attesting to the alteration of two separate notices. The District's response notes that "[n]o other employees in either bargaining unit raised election objections about not being able to vote due to their misplaced reliance on the altered notices." The District's response suggests that application of the persuasive Federal authority would compel a finding that the Clerical and Technical employee unit elec- tion was tainted if even one voter was disenfranchised. The District lastly states that there were no timely objections regarding Operations and Construction unit employee disenfranchisement and therefore there is no alleged basis for conducting an election in any unit other than in the Clerical and Technical employee unit. Upon due notice, on Tuesday, December 9, 1986, the Board, con- sisting of Chairman Edward S. Godfrey, presiding, Thacher E. Turner, Employer Representative, and George W. Lambertson, Employee Representative, convened an evidentiary hearing in the cause. The Teamsters union was represented at hearing by Teamsters' Secretary- Treasurer David L. Berg. AFSCME was represented by Stephen P. Sunenblick, Esq. The District was represented by Peter R. Kraft, Esq. -2- ______________________________________________________________________ The Teamsters elicited the testimony of its Chief Steward, John Emerson, and that of Harvard Brassbridge, Business Agent for Teamsters Local 340. No other testimony was offered by any party. JURISDICTION The Board has jurisdiction over this matter pursuant to 26 M.R.S.A. 968(4) & (5) (1974 & Pamph. 1986). None of the parties has contested the Board's jurisdiction over this matter. FINDINGS OF FACT Board agent Robert I. Goldman, Esq., conducted two simultaneous secret ballot bargaining agent/decertification elections between 1:30 and 3:30 p.m., on Thursday, November 13, 1986, in the Portland Water District's basement conference room, located at 225 Douglass Street in Portland, Maine. The following results were obtained. In the Operations and Construction unit election ninety-six of the 114 eli- gible unit members voted. The incumbent Teamsters received fifty votes and were recertified as the collective bargaining agent, pre- vailing over AFSCME by a margin of seven votes. In the Clerical and Technical unit election twenty-one of the twenty-five eligible unit members voted. AFSCME received eleven votes and was certified as the exclusive collective bargaining agent, prevailing over the incumbent Teamsters by a two-vote margin. In attendance at the ballot tabulation, which ensued immediately after the close of the polls at 3:30 p.m., were Goldman, Berg, Brassbridge, Emerson, Kraft and AFSCME staff Representative Richard V. Taylor. Approximately ten minutes after the official close of the polls two eligible District Clerical and Technical unit employees, Mark Ward and Warren C. Hamilton, Jr., presented themselves for the purpose of voting. They were informed by the election agent that the polls were closed and that they would not be allowed to vote. Hamilton stated that he had appeared to vote at that time because a posted Notice of the election had been altered to reflect a 4:30 p.m. poll-closing deadline. Both Ward and Hamilton had work stations within the building where the polling occurred. -3- ______________________________________________________________________ Emerson had been informed at 7:45 a.m. on the morning of the balloting, by the District's Douglass Street Water Division Assistant Superintendent, that a Notice of the election had been altered to reflect a changed poll-closing deadline. Emerson immediately verified that a Notice had been altered. Emerson could not testify at hearing as to whether the altered Notice pertained to the Operations and Construction employee unit or to the Clerical and Technical employee unit. Emerson testified that he had observed that on the altered Notice, posted on the main bulletin board in the hallway near the polling place, the 1:30 to 3:30 p.m. polling time span had been lined out and a handwritten "4:30 p.m." substituted therefor. Neither Emerson nor any other person present at the tabulation of ballots made any effort to inspect or obtain the altered Notice after the election. There is no evidence in the record bearing on when the Notice was altered. There is also no allegation or evidence as to who altered the Notice. Emerson urged the Water Assistant Superintendent to notify the Operations and Construction employees, in the field, of the correct polling times. Emerson did not notify the Board, the Board's election agent, the Teamsters or AFSCME of the altered Notice and did not attempt to urge the Superintendent of the Clerical and Technical employees to make any effort to clarify the polling times. There is no evidence that AFSCME knew of the alteration prior to the tablula- tion of the ballots and no evidence that the District made any effort to clarify the polling time for Clerical and Technical employees. Four to six hours after the election Emerson checked the bulletin boards located both near where the clerks collect payments and in the stockroom. The Notices on these two boards had been removed. The altered Notice on the main bulletin board was not posted on the day after the election. There is no evidence that any of the eighteen non-voting eligible employees in the Operations and Construction unit failed to vote in reliance upon an altered election notice. No member of the Operations and Construction employee unit attempted to vote within twenty minutes after the closing of the polls. Notices posted on the District's -4- ______________________________________________________________________ bulletin boards are often marked or altered. DISCUSSION The essential goal of the Board in its conduct of representation elections is to assure that employees be afforded the opportunity to exercise a free and untrammeled choice. See Phippsburg School Department v. AFSCME, Council 93, No. 87-A-02 (Me.L.R.B. Nov. 26, 1986); Bridgton Federation of Public Employees v. Hamill, No. 81-54 (Me.L.R.B. Mar. 3, 1982). Elemental to this goal is the requirement that each individual employee in the unit be enfranchised. Accordingly, the Board will entertain election objections requesting that elections be reconducted where it is alleged that a group of non- voting employees, whose number might be outcome-determinative, may have been disenfranchised by reasonable reliance upon altered Notices of Board elections. See Board Election Rule 3.07. Moreover, the Board's prohibited practices complaint procedures are available to redress any interference with the election process. See 26 M.R.S.A. 964(1)(A) & (2)(A) (1974); Board Election Rule 3.08. For the reasons set forth below we find that the Teamsters have not proved that any employee has been disenfranchised in the instant case. We therefore conclude that the Teamsters election objections must be dismissed. There is ample evidence to establish that the employees who attempted to vote after the close of the polls informed those present at the tablulation that they were attempting to vote within the apparent time extension effected by the alteration of the Notice. The mere fact that this statement was made, however, does not establish that these employees attempted to vote late in reliance on the altera- tion or that their reliance on the alteration was reasonable. The record contains only hearsay evidence in this regard. The District appended affidavits by Ward and Hamilton in support of its response to the Teamsters' election objections. Those affidavits, however, were never offered as evidence in the case. Moreover, it was not established that the direct testimony of Ward and Hamilton was unavailable. -5- ______________________________________________________________________ The record establishes that Chief Steward Emerson was informed by the Water Division Assistant Superintendent that a Notice had been altered and that there was some confusion among the members of the Operations and Construction unit as to the correct polling period. The record also establishes that Emerson asked the Assistant Superintendent to see that the correct poll-closing time of 3:30 p.m. was relayed to crews in the field. No similar effort was made by the Chief Steward concerning the Clerical/Technical unit. Although the Board mailed separate notices of each of the two elections to the District for posting, Emerson observed only one altered notice on the main bulletin board and could not state whether the alteration was contained on a Notice concerning the Clerical and Technical unit election Finally, although it was reasonably for- seeable that the nature of the alteration would be relevant to a determination of whether reliance reasonably could have been placed thereon, no party bothered to retain or even inspect the altered Notice upon completion of the ballot tally. Accordingly, the Teamsters election objections must be dismissed as unsupported by the record evidence. There was no evidence tendered at all to establish that any employee in the Operations and Construction employee unit was disenfranchised in reliance on the altered Notice. Additionally, we note that AFSCME's request for a reconducted Operations and Construction unit election was conditioned upon the Board's require- ment of a new election in the Clerical and Technical employee unit. It is regrettable that the alteration of the Notice, discovered early on the day of the election, was not reported to the Board and to the Board's election agent so that curative measures might have been undertaken to assure, with absolute certainty, the enfranchisement of each eligible voter. ORDER Based on the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by the provisions of 26 M.R.S.A. 968(4) & (5) (1974 -6- ______________________________________________________________________ & Pamph. 1986), it is ORDERED: That the Objections to Election filed by the Teamsters on November 18, 1986, be and hereby are DISMISSED. Dated at Augusta, Maine, this 7th day of January, 1987. MAINE LABOR RELATIONS BOARD /s/____________________________ The parties are hereby advised Edward S. Godfrey of their right pursuant to 26 Chairman M.R.S.A. 968(5) (Pamph. 1986) to seek review of this Decision and Order by the Superior Court by filing a /s/____________________________ complaint in accordance with Thacher E. Turner Rule 80B of the Rules of Civil Employer Representative Procedure within 15 days of the date of the Decision. /s/____________________________ George W. Lambertson Employer Representative -7- ______________________________________________________________________