STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 88-EA-01 Issued: September 19, 1988 _________________________________________ ) MERRYMEETING EMPLOYEES ASSOCIATION/ ) MTA/NEA ) ) and ) DECISION AND ORDER ) LOCAL 2010, COUNCIL 74, AMERICAN ) ON FEDERATION OF STATE, COUNTY AND ) MUNICIPAL EMPLOYEES/AFL/CIO ) OBJECTIONS TO ELECTION ) ) and ) ) MAINE SCHOOL ADMINISTRATIVE DISTRICT #75 ) _________________________________________) The facts in this matter are not in dispute. In 1976 Council 74, American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME") was certified as the bargaining agent for the support per- sonnel bargaining unit at Maine School Administrative District #75 ("SAD #75"). AFSCME has negotiated successive collective bargaining agreements for that bargaining unit since its certification and the most recent agreement, which was in force during the time of the crit- ical events herein, contained a termination date of June 30, 1988. In February, 1988, consistent with the provisions of the Municipal Public Employees Labor Relations Act ("Act"), AFSCME gave timely notice of its intent to negotiate the terms of a new agreement and negotiations with SAD #75 thereafter occurred. During the month of April, 1988, and well within the statutory "window period,"[fn]1 the Merrymeeting Employees Association/MTA/NEA ("Association") filed a certification/decertification election petition with the Maine Labor Relations Board ("Board") by which it sought to replace AFSCME as the _______________ 1 Section 967(2) (Pamph. 1987) of the Act provides: "Where there is a valid collective bargaining agreement in effect, no question con- cerning unit or representation may be raised except during the period not more than 90 nor less than 60 days prior to the expiration date of the agreement." -1- ________________________________________________________________________________ certified representative for the employees in the unit. The Acting Executive Director of the Board scheduled an election for May 27, 1988. AFSCME protested that date as inappropriate for reasons which will be discussed below.[fn]2 An evidentiary hearing was held on June 1, 1988, Chairman William M. Houston presiding, with Employer Representative Thacher E. Turner and Employee Representative George W. Lambertson. The Merrymeeting Employees Association/MTA/NEA was represented by Shawn C. Keenan, Esq., General Counsel for the Maine Teachers Association. Local 2010 was represented by John Ezhaya, a Field Representative for AFSCME, Council 93. MSAD #75 was not represented although Robert Libby, Administrative Assistant to the superintendent, was in attend- ance. The parties were given full opportunity to examine and cross- examine witnesses, to introduce documentary evidence, and to make argument. The parties filed posthearing briefs, the last of which was received on July 1, 1988, which were considered by the Board in reaching its decision. JURISDICTION The Board has jurisdiction over this matter pursuant to 26 M.R.S.A. 968(4) & (5) (1974 & Pamph. 1987). Neither party has objected to the Board's jurisdiction over this matter. DISCUSSION AFSCME has appealed the action of the Acting Executive Director in scheduling the election prior to the expiration of the existing collective bargaining agreement. It claims that there is no authority in the Act for such action and also that it is at odds with the case law of the National Labor Relations Board ("National Board") whose precedent this Board has frequently followed in representation mat- ters. The core of AFSCME's claim is that the "insulated period"[fn]3 _______________ 2 Although AFSCME had other objections to the procedure leading to the election, at the hearing it waived all objections save for the scheduling of the election during the 60-day period prior to the ter- mination date of the agreement. 3 The "insulated period" is the time remaining between the last day of the "window period" and the expiration of the contract. -2- ________________________________________________________________________________ should be a time when the incumbent agent can concentrate on the obli- gations owed the employees in the unit, including the responsibility to seek a favorable successor agreement, free from the contentiousness and devisiveness occasioned by a decertification election campaign. AFSCME also argues that confusion concerning the legal obligations and responsibilities of the competing entities may occur, depending on the results of the election.[fn]4 Finally, AFSCME raises the issue of impair- ment of contract, which is proscribed by Article I, Section 11 of the Constitution of this State. It therefore requests the Board to reverse its decision in Old Orchard Beach.[fn]5 That decision upheld the right of the Executive Director to hold an election during the "insulated period." The Association, on the other hand, believes that Old Orchard Beach is sound labor law; that the collective bargaining agreement has not been abridged, but only the agent changed; and that any confusion regarding legal rights and duties arising out of a vote to decertify the existing agent should await an appropriate case in point. We see no reason to change the result or rationale of our Old Orchard Beach decision. It is in the interest of the employees in the bargaining unit, and consonant with sound labor relations principles, that an election be held as soon as practicable consistent with our Election Rules and provided there is fair notice to the participants. To do so in no way conflicts with the purpose of the "insulated period." This period of time is "insulated" only in the sense that it is intended to free an incumbent agent from the disruption or harassment which would result if decertification petitions could be lawfully filed in the last days or hours of an expiring agreement. In ______________ 4 For example, AFSCME posits that although a newly certified agent would have the responsibility to administer the agreement for whatever time remains of its term, the former incumbent would be entitled to continued remission of dues deducted per provisions of the agreement. For the reasons stated in the body of our Discussion, we will not express an opinion concerning this postulation. 5 Old Orchard Beach Police Department, Decision and Order (M.L.R.B., Dec. 16, 1974). -3- ________________________________________________________________________________ Deluxe Metal,[fn]6 which AFSCME believes supports its position, the National Board adopted a "window period" rule precisely to forestall the possibility of mischievous, late-filed petitions during the last weeks of a collective bargaining agreement, as had previously been the practice. Under the prior practice before the National Board, notice of representation hinged on the automatic renewal date of an agreement. If the contracting parties did not forestall renewal of the agreement, an insurgent group was obligated to take action before the renewal date, and could do so even on the last day of the expiring agreement. However, if the parties gave notice forestalling renewal, a petitioner gained additional time in which to file an election peti- tion and thus intrude itself into the bargaining relationship at an even later date. The National Board established a "window period" to provide a uniform time for the filing of representation petitions and thus relieve the incumbent agent, the employees and the employer of the anxiety and vexatiousness inevitably caused by late-filed petitions. In Deluxe Metal the National Board stated: The Board believes the 60-day insulated period desirable for several reasons. It will give rival unions a definite time- guide as to when to organize, and employees will know when to seek a change in representatives if they so desire. Thus, it will avoid as much disruption of labor relations as possible during a contract term. All potential petitioners will be required to have their petitions on file at least 61 days before the terminal date of the contract or run the risk that a contract executed during the 60-day insulated period will prevent another opportunity to file for the new contract's reasonable term. It will also prevent the threat of overhanging rivalry and uncertainty during the bargaining period, and will eliminate the possibility for employees to wait and see how bargaining is proceeding and use another union as a threat to force their current representative into unreasonable demands. Under the previous rules, if the parties did not forestall renewal of their contract, a petitioner was obligated to take appropriate action before the automatic renewal date. But if the parties gave notice forestalling renewal, a peti- tioner obtained additional time in which to file, thus enabling it to intrude into the bargaining relationship merely because the parties were attempting to perform their ______________ 6 Deluxe Metal Furniture Co., 121 NLRB 995, 42 LRRM 1470 (1958). -4- ________________________________________________________________________________ bargaining obligations. The Board finds no particular merit in extending a rival union's opportunity merely because the parties are attempting to perform their statutory duty. The question of whether or not automatic renewal of a contract has been forestalled should be considered only after the parties have failed to execute a new agreement during the 60-day insulated period. Further, the creation of the 60-day insulated period and the requirement that rival peti- tions be on file prior thereto without regard to whether the parties have forestalled automatic renewal will eliminate in many cases the necessity of taking evidence and weighing the actions of the parties with respect to their contract. It is clear from the foregoing that the National Board created a "window period" for the filing of election petitions to provide both certainty and stability in the collective bargaining process-- certainty as to when such petitions should be filed for parties interested in representing the employees, and stability to the bargaining process where there had been confusion and uncertainty in the past. The decision in Deluxe Metal does not support the proposi- tion that an election should not be held during the so-called "insulated period." Also, contrary to AFSCME's suggestion, nowhere in Deluxe Metal is there any support for the proposition that an agreement executed in the "insulated period" by the incumbent agent and the employer will obviate the need for an election even though a representation petition has been timely filed during the "window period." To the contrary, the filing of an election petition during the "window period" guaran- tees that a representation election will be conducted. That is the central thrust of Deluxe Metal and it is apparent that the statutory "window period" found in our Act has the same policy footing as the rule adopted by the National Board in that case.[fn]7 The fundamental purpose of the rule is not to "insulate" the incumbent agent from the need to endure an election test if a new agreement is reached in the last 60 days of an existing agreement; rather, the purpose is to prescribe a time certain for the filing of an insurgent petition, ______________ 7 This Board has adopted the rationale of Deluxe Metal with respect to the "contract bar" rule of Section 967(2). See Town of Jay, Decision and Order on Objections to an Election (M.L.R.B., May 15, 1979), 1 NPER 20-10015. -5- ________________________________________________________________________________ thus ensuring an election to determine the employees' desires. The "window period" provides "insulation" for the incumbent in the final 60 days of an expiring agreement only if no petition has been filed in the 60-90 day period provided therefor. Furthermore, there simply is no valid reason to bar an election during the "insulated period" if the election is held consistent with the Election Rules and fair notice to the participants. It is better to resolve the uncertainty over the question of representation as soon as may fairly be done, rather than to delay the issue until a later time.[fn]8 The assumption that AFSCME has made to the effect that historically the National Board has refrained from holding an election during the final weeks of an agreement is without foundation. In Leonard Wholesale Meats[fn]9 that board reduced the 60-150 day "window period," which it had adopted in Deluxe Metal, to the "60-90 day" period it has since employed, and it is apparent from the decision that it had been common for Regional Directors to hold an election prior to the expiration date of an existing agreement. The labor boards also commonly conduct representation elections prior to expira- tion of agreements, in some instances much earlier than either the National Board or the Maine Board.[fn]10 The argument that AFSCME makes concerning impairment of contract is not well founded. It cites no case law or authorative commentary to support the proposition. The fact is that the collective agreement is not impaired at all; it continues in full vitality insofar as the record in this matter indicates. The Act merely contains a process for the opportunity to change the bargaining agent if the employees so ______________ 8 In any event, as a practical matter, due to the timing of the filing of the petition within the "window period" and other variables associated with scheduling an election, in many instances an election will be delayed until some time after expiration of the agreement. 9 Leonard Wholesale Meats, 136 NLRB No. 103, 49 LRRM 1901 (Apr., 1962). 10 For example, New York state; see Civil Service Employees Association v. Milowe, N.Y. Sup. Ct., App. Div., 101 LRRM 2184 (1979). In that case the New York board entertained a petition filed 7 months prior to the expiration of the agreement. -6- ________________________________________________________________________________ desire. The provisions of the Act do not even suggest that the underlying agreement will be otherwise affected. The duty to repre- sent the employees pursuant to the terms of the agreement is deter- mined by statute, 26 M.R.S.A. 967(2) (Pamph. 1987), and will fall equally on one contender or the other, depending upon the employees' expressed desires. Further, an incumbent union is by definition the "agent" for the employees in the bargaining unit, and the employees themselves as a group are the real party in interest. The Maine Act and the National Board rule merely provide an orderly means for the employees to seek a change of their "agent" for purposes of continued representation.[fn]11 That is what hasoccurredd in the instant matter. The employees voted to change the identity of the representative-- and there has been no impairment of the underlying agreement. Finally, since collective bargaining and agreements engendered thereunder are progeny of statute and are not constitutionally based, presumably the Legislature could impose rational limitations on such activity or resultant agreements without running afoul of Constitutional prohibitions.[fn]12 In any event, no impairment has been demonstrated in this matter. ______________ 11 They may, of course, vote for "no representative" and thus ter- minate the collective bargaining relationship as of the end of the agreement. AFSCME assumes that the incumbent would have the con- tinuing obligation to administer the agreement until its termination if the employees voted "no representative." In the Old Orchard Beach decision, which was a straight decertification, this Board found that the former agent had that responsibility. For a discussion of the continuing responsibilities owed by a decertified union to the members of the unit, see Rochester School Board v. PERB, New Hampshire Supreme Court, 101 LRRM 2l29 (1979). 12 Collective bargaining is not necessarily a common law right. See Churchill v. S.A.D. #49 Teachers Association, 380 A.2d 186 (Me. 1977); Lewiston Teachers Association v. Lewiston School Committee, MLRB No. 80-45, 2 NPER 20-11038 (Aug. 11, 1980). Although claiming that there is a constitutional impairment of contract in the Board's actions herein, AFSCME in its Reply Brief nonetheless allows that, "The Legislature, creating the public employees bargaining system, could presumably specify that an incum- bent bargaining agent can be decertified prior to a contract's expiration." -7- ________________________________________________________________________________ For the reasons stated we find that AFSCME's appeal must be denied. ORDER Based on the foregoing findings and discussions 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 & Pamph. 1987), it is ORDERED: That the objection to conduct by the Acting Executive Director in scheduling an election for May 25, 1988, be and hereby is DISMISSED. Dated at Augusta, Maine this 19th day of September, 1988. The parties are hereby MAINE LABOR RELATIONS BOARD advised of their right, pursuant to 26 M.R.S.A. 968(4) (Pamph. 1987), to seek review of this /s/_________________________________ decision and order by William M. Houston the Superior Court. Chairman To initiate such a review an appealing party must both file a complaint with the /s/_________________________________ Superior Court within Thacher E. Turner fifteen (15) days of the Employer Representative date of issuance hereof, and otherwise comply with the requirements of Rule 80B of the Maine Rules of /s/_________________________________ Civil Procedure. George W. Lambertson Employee Representative -8- ________________________________________________________________________________