In Re Petition for Decertification of Federation of Nurses and Health Professionals / AFT, City of Bangor Nursing Facility, 98-E-01, Aug. 13, 1997 (contract bar issue) and Sept. 11, 1997 (remaining objections). Appeal to Board ultimately withdrawn. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-E-01 Issued: August 13, 1997 _______________________________ ) In Re: ) ) EXECUTIVE DIRECTOR'S PETITION FOR DECERTIFICATION, ) DECISION BANCOR CITY NURSING FACILITY ) _______________________________) INTRODUCTION On June 30, 1997, Ms. Mary Ellen Derouin submitted to the Maine Labor Relations Board ("Board") a petition for an election to decertify the Federation of Nurses and Health Professionals/ AFT (hereinafter referred to as "Union") as the certified bargaining agent for the City of Bangor Nursing Facility Employees' Bargaining Unit. The petition was subsequently amended and formally filed with the Board on August 5, 1997. In a letter dated July 23, 1997, Mr. Ross Ferrell, representing the Union, objected to the timeliness and sufficiency of the petition on a number of grounds, including that the filing of the petition was barred by the contract bar rule in 26 M.R.S.A. 967(2). I wrote to Mr. Ferrell on July 25, 1997, indicating that the contract bar issue would be addressed as soon as the petition was formally filed and that the other issues would be decided separately. This decision represents my administrative determination that the decertification petition is not barred by the contract bar rule.[fn]1 ____________________ 1 This determination was originally issued in the form of a letter dated August 13, 1997, addressed to the Union with a copy provided to the petitioner. The substance of that decision was reformatted into the current form when it was appealed to the Board. It was reformatted in order to facilitate access to the decision in electronic format. -1- JURISDICTION The jurisdiction of the executive director to decide this matter lies in 26 M.R.S.A. 967(2) and Board Rule 2.06. DISCUSSION The contract bar rule is contained in the statutory provision governing bargaining agent elections. The pertinent portion of 26 M.R.S.A. 967(2) states: Where there is a valid collective bargaining agreement in effect, no question concerning unit or representa- tion may be raised except during the period not more than 90 nor less than 60 days prior to the expiration date of the agreement. The Union contends that a valid collective bargaining agreement is in effect thereby barring the filing of this decertification petition. The duration clause of the parties' initial collective bargaining agreement provides that it is effective February 26, 1996, through June 30, 1996. The duration clause goes on to say: In the event that the parties have not agreed to a successor agreement prior to the expiration date of the agreement, they agree that the present Agreement remains in effect until they have negotiated a new agreement. The parties are currently negotiating a successor agreement. The Union's position is that this extension of the contract during negotiations triggers the contract bar rule. The Maine Labor Relations Board directly addressed this issue in the case Town of Jay and Teamsters Local Union No. 48 State, County, Municipal and University Workers, No. 78-A-11 (Me.L.R.B. May 15, 1979). In that case, the collective bargaining agreement's termination clause provided that the contract remain in effect during the period of negotiations over a new agreement. The Board held that a decertification petition -2- may be filed even though the contract was extended during negotiations. The Board stated: It is a well-settled principle of law that the extension of an agreement pending modification of the agreement or negotiation and execution of a new agreement does not bar the filing of a decertification petition subsequent to the expiration date expressed in the agreement. See, e.g., Metropolitan Life Insurance Co., 172 N.L.R.B. 1257 (1968); John Liber & Co., 123 N.L.R.B. 1174, 1175 (1959); In re Petition for Decertification, Biddeford Police Department (Hearing Examiner's Decision) (M.L.R.B., June 8, 1978). Town of Jay at 5-6. The Board's policy on the contract-bar rule has not changed since Town of Jay was decided in 1979. I conclude that Ms. Derouin's decertification petition in this case is not barred by section 967(2). Dated at Augusta, Maine, this 13th day of August, 1997. MAINE LABOR RELATIONS BOARD /s/_______________________________ Lisa Copenhaver Designee of the Executive Director The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Supp. 1996), to appeal this report to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Board Rules 1.12 and 7.03 for requirements. -3- STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-E-01 Issued: September 11, 1997 _______________________________ ) In Re: ) ) EXECUTIVE DIRECTOR'S PETITION FOR DECERTIFICATION, ) DECISION BANGOR CITY NURSING FACILITY ) _______________________________) INTRODUCTION A petition for an election to decertify the Federation of Nurses and Health Professionals/AFT (hereinafter referred to as "Union") as the certified bargaining agent for the City of Bangor Nursing Facility Employees' Bargaining Unit was submitted to the Maine Labor Relations Board ("Board") on June 30, 1997, by Ms. Mary Ellen Derouin. The petition was amended and formally filed with the Board on August 5, 1997. In letters dated July 23, 1997, and August 16, 1997, Mr. Ross Ferrell, repre- senting the Union, objected to the timeliness and sufficiency of the petition on a number of grounds. In a decision issued on August 13, 1997, I made the administrative determination that the decertification petition was not barred by the contract bar rule, a decision the Union formally appealed to the Board on Sept. 2, 1997. The decision below addresses the Union's remaining objections; namely, that the decertification petition must be served on a representative of the local; the petition does not contain the required information on the bargaining unit; a copy of the collective bargaining agreement that the petitioner submitted to the Board was not supplied to the bargaining agent; and the showing of interest is insufficient and not in compliance with Rule 2.03 and Rule 1.06. -1- JURISDICTION The jurisdiction of the executive director to decide this matter lies in 26 M.R.S.A. 967(2) and Board Rule 2.03(B). DISCUSSION 1. CERTIFIED BARGAINING AGENT In the letter dated July 23, 1997, Mr. Ferrell contends that the bargaining agent is the Federation of Nurses and Health Professionals Local 5093 and that any formal notice must be served on the Local and not him. This objection is without merit. The bargaining agent certified by the Board is the Federation of Nurses and Health Professionals/AFT, not Local 5093. In any event, the better practice is to serve the bargaining agent and not local union officials. See Saco Valley Teachers Assoc. and MSAD #6 Board of Directors, No. 85-07 and 85-09, slip op. at 12, 8 NPER ME-16013, (Me.L.R.B. Mar. 14, 1985). 2. BARGAINING UNIT DESCRIPTION Rule 2.02(A)(3) requires that a petition for decertification contain " . . . a description of the certified bargaining unit involved and the approximate number of employees therein" and section 6 of MLRB Form 2 reflects that requirement. The Union objects to the petition on the grounds that this required information was not included on the petition for decertification. It is true that the petition filed August 5, 1997, does not contain the description of the existing bargaining unit and the estimated number of employees in that unit that is required by Rule 2.02(A)(3). The purpose of this rule in the context of a decertification petition is to provide the Board with the infor- mation necessary to determine whether the showing of interest in support of the petition is adequate. It also provides the affected parties the opportunity to correct errors or omissions in classifications listed as belonging in that unit so that the basis for calculating the 30 percent requirement is correct. -2- In this case, the petition filed on August 5, 1997, was an amended petition filed to correct problems with a petition submitted on June 30, 1997. That original petition did contain the required information which the attorney examiner used to review the showing of interest. Although it is still unclear whether Mr. Ferrell ever received a copy of the original petition, Mr. Ferrell subsequently received a full list of employees in the unit provided by the employer to the Board and Mr. Ferrell at my request. The reason this list was requested was to permit a closer review of the showing of interest by the Board and the bargaining agent. Therefore, it is my conclusion that any omission in providing the description of the bargaining unit required by Rule 2.02(A)(3) is harmless error in the circumstances. The bargaining agent was in possession of a complete list of eligible employees in the unit for the specific purpose of determining whether the 30 percent showing of interest requirement was met. The Union had full opportunity to object to the inclusion or omission of any position on that list. 3. COPY OF COLLECTIVE BARGAINING AGREEMENT The Union also objects to the decertification petition on the basis that the petitioner did not supply the bargaining agent with a copy of the collective bargaining agreement that was provided to the Board as part of the petition pursuant to Rule 2.02(A)(5). Rule 2.02 describes the contents of the decertifi- cation petition and Rule 2.01 requires, among other things, that the petition be served upon the incumbent bargaining agent. This means the Union must be served with a copy of everything consid- ered part of the petition. In the present case, the petitioner submitted a copy of the collective bargaining agreement to the Board after the MLRB Form 2 was submitted but did not provide the Union with a copy. Mr. Ferrell supplied the Board with a copy of the agreement in support of his argument that the contract bar rule prohibited the filing of the decertification petition. I reviewed the two -3- agreements and concluded that the petitioner and the Union submitted the same agreement. Furthermore, there has only been one collective bargaining agreement signed by the parties. It is not a case where the petitioner could have provided a copy of the wrong agreement. I cannot now conclude that any party was harmed by the failure of the petitioner to serve a copy of the agreement upon the incumbent union in the circumstances. 4. SHOWING OF INTEREST The final issue raised by the Union is whether the showing of interest is sufficient and valid. Although I am finding that the showing of interest forms comply with Rule 2.03 and Rule 1.06, I have reason to believe that the signatures were not collected in compliance with the underlying spirit of the rules. I will go into extensive detail below to describe the evidence because the actual showing of interest forms must remain confidential and may not be reviewed by the parties now or upon appeal. Teamsters Local #340 and City of Brewer, No. 77-A-06, (Me.L.R.B. Sept. 19, 1977). If this decision is appealed to the Board, the Board may hold a full evidentiary hearing but any review of the showing of interest documents may only be performed by the Board in private. In the letter dated July 23, 1997, the Union specifically asked if the Board determined whether any of the employees had been employed less than six months and if the showing of interest complied with Rule 1.06. In the letter dated August 16, 1997, the Union raised the question of whether the showing of interest complied with Rule 2.03 and Rule 1.06 and went on to note: [Rule 2.03 requires] the evidence of showing of interest "shall consist of original separate documents, with a separate document being signed by each individual . . . employee." This is more than a procedural matter. The Board has determined that there must be separate authorization forms to preserve privacy and reduce undue duress on the potential signers. Do the forms submitted by the petitioner contain a signature, printed name and a hand written date? Does each separate document contain a separate -4- statement that each person no longer desires represen- tation? What is the specific wording in the documents submitted for decertification? Union letter dated 8/16/97 at 4. In response to the Union's letter of July 23, 1997, I requested the employer to provide a complete list of employees in the unit as of August 5, 1997, and copies of their signatures in order to more closely examine the sufficiency of the showing of interest. At my direction, a copy of the requested information was provided to the Union by the employer and the Union was given the opportunity to comment on that information. Using the uncontested list provided by the employer, I counted the number of public employees in the unit and the number of public employees signing showing of interest forms and calculated that the 30 percent threshold was met. No employees with less than six months of service on August 5, 1997, were counted. Rule 1.06 and Rule 2.03 require that the evidence of the showing of interest be in the form of separate documents with each document containing the signature of the employee, the handwritten date of signing, the printed or typewritten name of the employee signing, and a statement that the employee no longer wishes to be represented by the incumbent bargaining agent. In this case, the evidence submitted of the showing of interest consisted of separate documents containing all of the requisite information. Each document contained the identical information (other than the name and date) and looked like this: -5- SHOWING OF INTEREST CARD FOR DECERTIFICATION OF BARGAINING AGENT I, ______________________________________, employee of Bangor City Nursing Facility; City of Bangor, (print or type name) no longer wish to be represented by Federation of Nurses and Health Professionals, FNHP/AFT, AFL-CIO, Local #5093, for the purposes of collective bargaining. Date: ____________________________ __________________________________________ (must be handwritten by (signature) person signing card) _________________________________________________________________________________________________ Based on a close review of the showing of interest documents and the employer-provided information, I have concluded that the 30 percent threshold is met and that the showing of interest otherwise complies with Rule 2.03 and Rule 1.06. Each document contained the requisite declaration, signature, handwritten date, and printed name. All of the employees signing these documents were public employees in the unit as of the date of the petition and their signatures correspond to signatures provided by the employer. The authenticity of the showing of interest documents is not at issue. Union letter dated 8/16/97 at 1. There is a problem as to whether the documents the employees signed were separate documents at the time they were signed. Based on the size of the documents and their appearance when submitted to the Board, I have concluded that the documents were not separate documents when they were signed by the employees. The documents submitted to the Board, as depicted above, were each 8 1/2" wide and about 3 1/2" high. While the width of each document was constant, the height of the documents varied somewhat. The right side ranged from 3 3/8" to 3 3/4" in height -6- and the left side ranged from 3 1/2" to 3 3/4". None of the forms were perfect rectangles, that is, none had four right- angled corners. The solid line at the bottom of the form was fully visible on some of the forms, only partially visible on others, and not present at all on others. The physical appearance of these forms is consistent with what would occur if one were to type the above showing of interest language three times on an 8 1/2" by 11" piece of paper, separate them with two solid lines across the paper, photocopy that one piece of paper to make multiple copies, and then cut a stack or stacks of the full sheets into thirds with a paper cutter. This is not surprising and is probably the quickest and most cost-effective way of making multiple copies of a form on non-standard sized paper. Assuming this is what happened, an important question is whether the documents were signed before or after they were cut into strips. As received by the Board, the showing of interest forms were in a stack consisting of a bunch of forms of nearly identical size, followed by another bunch of a different size but nearly identical to one another, followed by another bunch and so on. The length of the solid line and whether it was visible on the right or left side was also a feature noticeable in the same groups. This grouping of forms is consistent with how they would be arranged after cutting the strips in a less than perfect fashion on a paper cutter. It is possible that the strips were cut, distributed to employees, signed by the employee, returned to the petitioner and sent to the Board without disturbing this order. It is much more probable, in my view, that the forms were not cut until after they had been signed. If that is the case, the showing of interest forms were not separate documents, as required by Rule 2.03, at the time they were signed even though they were separate documents when they were submitted to the Board. The requirement of Rule 2.03(B) and 1.06(C) that the showing of interest evidence be submitted on separate documents was added -7- in 1990. The Board's explanation of the change was "to avoid the potential for undue pressure on employees being asked to sign something that already contains the name and signature space for each employee. The potential for undue pressure is less if individual documents are offered for signature." Proposed Amendments to Rules and Procedures of the Maine Labor Relations Board, Explanation of Changes in Chapter 1. 1990. The impetus for this change appears to be a prohibited practice complaint following a successful decertification election in which the validity of the showing of interest was one of the issues heard by the Board. The Board stated: The Union's first allegation is that the Employee violated 964(2)(A) by pretyping the names of bargaining unit employees on the showing of interest in support of petition for decertification election. In our view, the typing of the names of bargaining unit employees on a showing of interest which is in the form of a listing of employees, prior to the signing of said showing by the employees, may well be subtly coercive. Generally speaking, we disapprove of the practice as a matter of policy.2 In the circumstances of this case, however, we hold that the pretyping of the employees' names was not unlawfully coercive because it occurred on the second showing of interest and the employees whose names were pretyped had already signed the first showing which did not contain pretyped names. _______________ 2The use of separate cards signed by the unit employees is a preferable practice. AFSCME, Council 93 v. Maynard, et al., Nos. 86-22, 86-25 and 86-A-03, slip op. at 15-16, 9 NPER ME-18014 (Me.L.R.B. March 10, 1987). The Board's discussion in the Maynard case and the explanation of the amendment to the rule suggest that there was never a per se rule that any time there was more than more than one name on a form, there was necessarily coercion and the forms were invalid. Thus, the underlying purpose of this aspect of Rule 2.03 does not compel a dismissal of the decertification of this petition even though I have concluded that the showing of interest forms were not separate documents when they were signed. -8- Similarly, the underlying purpose of the requirement of a 30 percent showing of interest before an election will be scheduled does not compel a dismissal of the petition in this case. In a previous decertification case involving a variety of challenges to the showing of interest, the Board considered the purpose of requiring a showing of interest in making its determination: The purpose of the showing of interest requirement is, not to show that a union represents a clear and unambiguous majority of the employees, but merely "to determine whether there is a demonstration of enough genuine employee interest in a union to justify the expenditure of agency resources for an election." Quick Find Co., 259 NLRB 1051, 1062 (1982). Council No. 74, AFSCME and Maine State Employees Association, et al., No. 84-A-01, slip op. at 7, 6 NPER 20-14037, Interlocutory Decision and Order (Me.L.R.B. Aug. 24, 1983). Given the fact that the showing of interest forms submitted to the Board were separate sheets when they were submitted and were technically in compliance with Rule 2.03, I am making an administrative decision pursuant to Rule 2.03(B) that the showing of interest forms comply with all of the requirements of Rule 2.03(A) and Rule 1.06. SUMMARY The fact that the decertification petition filed on August 5, 1997, did not contain a description of the unit involved is, at most, harmless error that does not justify dismissal of the petition. Similarly, the failure to serve upon the Union a copy of the collective bargaining agreement does not affect the sufficiency of the petition in this case. The evidence of a 30 percent showing of interest was sufficient and met all of the requirements of Rule 2.03 and Rule 1.06. As previously noted, my decision issued on August 13, 1997, on the contract bar issue has been appealed to the Board. The -9- outcome of that appeal affects the jurisdiction of the Board to go forward with a decertification election. Consequently, an election will not be scheduled at this time. If the decision issued today is appealed to the Board, it will be heard at the same time as the contract bar issue. Dated at Augusta, Maine, this 11th day of September, 1997. MAINE LABOR RELATIONS BOARD /s/_______________________________ Lisa Copenhaver Designee of the Executive Director The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4) (Supp. 1996), to appeal this report to the Maine Labor Relations Board. To initiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of issuance of this report. See Board Rules 1.12 and 7.03 for requirements. -10-