STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 98-EA-02
Issued: March 23, 1998
______________________________
)
KEITH EMERY, )
)
Petitioner, )
) INTERIM ORDER
and ) ON ELECTION APPEAL
)
TEAMSTERS UNION LOCAL 340, )
)
Bargaining Agent. )
______________________________)
This matter comes to the Maine Labor Relations Board
(hereinafter "the Board") by way of a letter of appeal dated
March 4, 1998, filed by Kenneth L. Eaton, Business Agent for
Teamsters Union Local 340 ("the Teamsters"). The Teamsters
challenge the determination of the executive director's designee
that a decertification petition filed by Keith Emery on
February 23, 1998, was properly filed. The Teamsters contend
that the petition was improperly filed because it was not
notarized prior to service on the Teamsters.
A hearing was conducted by the Board on March 19, 1998.
Present for the Board were Chair Peter T. Dawson, Employer
Representative Karl Dornish, Jr., and Alternate Employee
Representative Wayne W. Whitney. Appearing on behalf of the
Teamsters was Kenneth L. Eaton; Keith Emery appeared on his own
behalf. The Board deliberated the matter immediately after the
hearing.
For the reasons set forth herein the Board hereby GRANTS the
Teamsters appeal.
JURISDICTION
The Board has jurisdiction to hear and decide this appeal
pursuant to 26 M.R.S.A. 968(4) (1988 & Supp. 1997). Neither
party has challenged the Board's jurisdiction.
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FINDINGS OF FACT
Upon review of the entire record of these proceedings the
Maine Labor Relations Board finds the following facts:
1. Teamsters Union Local 340 is the bargaining agent for a
unit of employees in the Town of Newport Police Department
consisting of one sergeant and three patrolmen. Mr. Keith Emery
is an employee in this unit.
2. On January 30, 1998, the Board received a petition
submitted by another member of this unit seeking to decertify the
Teamsters. By letter dated February 3, 1998, the executive
director's designee notified the petitioner that the Board was
unable to process his petition due to certain insufficiencies.
A copy of this letter concerning insufficiencies was provided to
the Teamsters to inform them of the status of that decertifi-
cation petition, even though it was not clear whether they had
received a copy of the petition.
3. On February 23, 1998, the Board received the decertifi-
cation petition in question from Mr. Emery. Mr. Emery's petition
was signed on February 11, 1998, served on the Teamsters on
February 13, 1998, and then notarized on February 21, 1998.
The petition received by the Board on February 23, 1998, had been
notarized; the petition received by the Teamsters on February 13,
1998, had not been notarized.
4. The executive director's designee did not notice that
the copy of the petition served on the Teamsters could not have
been notarized prior to service. On March 2, 1998, she sent a
letter to Mr. Emery, Mr. Eaton and the Interim Town Manager,
advising them that the decertification petition had been filed
and, consequently, a secret ballot decertification election had
been scheduled.
5. By letter dated March 4, 1998, the Teamsters appealed
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the decision to go forward with the decertification election and
requested that the petition be dismissed on the basis that it was
improperly filed.
6. By letter dated March 12, 1998, the executive director's
designee notified Mr. Emery of the Teamsters' appeal and the
hearing before the Board. Mr. Emery was also advised that he
could cure the issue of this appeal by serving a copy of the
notarized petition on the Teamsters. Mr. Emery had not served
the notarized petition on the Teamsters as of the date of
hearing.
7. Mr. Eaton testified that he noticed the petition served
on him was not notarized and expected the Board, as it had in the
case of the previous petition, would notify Mr. Emery that his
petition was improperly filed. Mr. Eaton states that, because of
his observation, he did not "act on" the petition (i.e., contact
members to actively "educate and inform" them of the "pitfalls of
decertification").
8. Mr. Emery testified that the motive of the Teamsters for
filing this appeal was to cause delay in the conduct of a
decertification election with hopes that the delay would effect a
favorable outcome for the union.
DISCUSSION
We are asked by the Teamsters to dismiss a petition for
decertification election based on the failure of the petitioner
to comply with the specific requirements for filing of a decerti-
fication election petition. We agree with the Teamsters that the
petition was improperly filed.
Rule 2.01 of the Board's Rules and Procedures pertaining to
decertification petitions reads, in part:
A petition for decertification shall be in writing,
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shall be signed before a notary public or justice of
the peace and shall contain a declaration by the
petitioner or petitioner's representative, under
penalty of perjury, that its contents are true and
correct to the best of the declarant's information and
belief. The original and one copy of the petition
shall be filed with the Maine Labor Relations Board
(Board). The petitioner shall, prior to the filing of
the petition with the Board, serve a copy of its
petition upon the incumbent bargaining agent, the
employer, and any organization which, to petitioner's
information and belief, claims to represent any
employees in the bargaining unit.
The first section of Rule 2.01 specifies that a
decertification election petition must be in writing and
notarized. The remainder of the rule concerns service and filing
of the previously referred to written and notarized petition.
We interpret Rule 2.01 to require the petitioner to serve on the
incumbent bargaining agent the same petition it intends to file
with the Board, that is, the notarized petition.
The purpose of Rule 2.01 is to impress upon the signer of a
petition that he will be held accountable for the truth and
accuracy of the contents of his petition. Cf. Teamsters Local
Union No. 48 v. Town of Millinocket and Millinocket Police
Association, No. 79-40, slip op. at 3 (Interim Order April 26,
1979)(purpose of Rule 4.02, which requires prohibited practice
complaints to be notarized, is to evince an awareness on the part
of the signer that he/she is responsible for the statements
contained in the complaint). In light of the purpose of the
Rule, the Board would not have accepted a petition which was not
notarized.
For this same reason, we do not believe an incumbent
bargaining agent should be expected to act on a petition which is
not notarized. Although Mr. Emery questions the motive of the
Teamsters in filing this appeal, the petition was improperly
filed. Whether or not the Teamsters were actually prejudiced by
the improper filing in this case, we must be careful to enforce
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the Rules and Procedures of the Board in every case.
The Teamsters request as a remedy for this improper filing
that the Board dismiss Mr. Emery's petition. We do not believe
an immediate dismissal of the petition is necessary to redress
this rule violation. Rather than dismiss Mr. Emery's petition,
we will hold his petition in abeyance until we receive proof of
service on the Teamsters of the (notarized) petition which was
received by the Board on February 23, 1998. Once proof of
service is received, the executive director's designee shall
process the petition in accordance with the election rules.
If the Board does not receive proof of service of the
notarized petition on the Teamsters within fourteen (14) days of
the date of issuance of this Interim Order, the pending
decertification election petition shall be dismissed.
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ORDER
On the basis of the foregoing and pursuant to the powers
granted to the Maine Labor Relations Board by 26 M.R.S.A.
968(4) (1988 & Supp. 1997), it is ORDERED:
That the appeal filed by the Teamsters is GRANTED.
The decertification election petition filed with the
Maine Labor Relations Board by Keith Emery on
February 23, 1998, shall be held in abeyance pending
receipt of proof of service of that petition on the
Teamsters. If the Board does not receive proof of
service of the February 23, 1998, petition within
fourteen (14) days of the date of issuance of this
interim order, the petition shall be dismissed.
Dated at Augusta, Maine, this 23rd day of March, 1998.
MAINE LABOR RELATIONS BOARD
/s/______________________________
Peter T. Dawson
Chair
/s/______________________________
Karl Dornish, Jr.
Employer Representative
/s/______________________________
Wayne W. Whitney
Alternate Employee Representative
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