STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 99-EA-01
Issued: February 22, 1999
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TEAMSTERS LOCAL UNION 340 )
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and ) DECISION AND ORDER
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TOWN OF BOOTHBAY HARBOR )
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The Town of Boothbay Harbor (hereinafter "the Town") filed
an objection to certification of a mail-ballot election conducted
by the Maine Labor Relations Board (the "Board"), wherein the
Board certified Teamsters Local Union 340 ("the Teamsters") as
the exclusive collective bargaining agent of a unit comprised of
police, fire and medical dispatchers.[fn]1
The basis for the Town's objection to certification is that
one of the three employees who voted submitted her resignation
prior to the date that ballots were counted by the Board agent
and was, therefore, not an eligible employee. Moreover, since
it cannot be determined whether the ineligible employee voted
for or against union representation and the vote was outcome-
determinative, the results of the election are uncertain and a
new election is required.
An evidentiary hearing was conducted on January 29, 1999,
Chair Peter T. Dawson presiding, with Employer Representative
Karl Dornish, Jr., and Alternate Employee Representative Wayne
Whitney. The parties were given an opportunity to submit
prehearing memoranda of law, and to present evidence and oral
argument at hearing. The Board granted the Town's request to
submit post-hearing briefs; the briefs filed by the parties were
considered by the Board prior to this decision.
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1 There were three dispatchers identified by the Town as
eligible voters in this election. Of the three ballots cast and
counted, two indicated a desire to be represented by the
Teamsters and one indicated a desire for no representative.
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We do not agree with the Town that the Board must conduct a
new election in these circumstances and, for the reasons set
forth herein, we AFFIRM the certification of the results of the
November 10, 1998, representation election.
JURISDICTION
The Board has jurisdiction to hear this matter and to issue
a decision and order pursuant to 26 M.R.S.A. 968(4) (1988 &
Supp. 1998). Neither party has challenged the Board's
jurisdiction.
FINDINGS OF FACT
Upon review of the Board's file in the representation
proceedings below, and of the record on appeal, the Board finds
the following facts:
1. On September 18, 1998, Mr. Carl Guignard, a
representative of the Teamsters, filed a unit determination
petition proposing a bargaining unit which would consist of the
Town's police, fire and medical dispatchers. The Town agreed to
the appropriateness of a unit as proposed by the Teamsters. This
agreement between the parties as to the composition of the unit
eliminated the need for a unit determination hearing; thus, the
Board began its election procedure.
2. The Board agent complied in every respect with the
procedural rules for the conduct of an election. Accordingly,
the agent issued a notice to Town employees on September 30,
1998, which informed them of the agreement between the parties
and the upcoming secret ballot election. The Board agent also
advised the Town that, pursuant to Rule 3.04(B), it was required
to furnish to the Board and to the Teamsters a list of the names
and addresses of the employees in the bargaining unit who were
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eligible to vote.[fn]2 The Town submitted a list identifying
three dispatchers eligible to vote, including Ms. Barbara
Lorrain.
3. In keeping with the procedural rules, the Board agent
issued a notice to employees on October 9, 1998, to advise that:
(i) the election would be conducted by mail ballot; (ii) the
ballots would be mailed to the home addresses of eligible voters
on October 27, 1998; and (iii) in order to be counted, ballots
had to be received by the Board by November 10, 1998. The Board
agent also informed the parties that, pursuant to Rule 3.07(C),
they were permitted to designate an election observer to attend
the tabulation of ballots in the Board's hearing room on
November 10, 1998.
4. On October 27, 1998, the Board agent mailed ballots to
the three dispatchers identified by the Town as eligible to vote.
On October 28, 1998, Ms. Lorrain marked her ballot and mailed it
to the Board. On October 29, 1998, Ms. Lorrain submitted a
letter of resignation to the police chief, effective that same
date. Ms. Lorrain requested to be paid for her accumulated sick
leave and vacation leave; she never returned to the dispatcher
position.
5. The Town Manager, Ms. Laurie A. Smith, learned about
Ms. Lorrain's resignation on November 5, 1998, when she returned
to the town office from a convention. Ms. Smith contacted
Ms. Lorrain to inform her that, in the case of employees who
resigned, it was town policy to not compensate employees for
accumulated leave unless the employee gives a two-week notice.
Ms. Smith gave Ms. Lorrain the opportunity to come back to work
and complete that notice period; however, Ms. Lorrain declined
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2 Rule 3.04(A) provides: The employees eligible to vote
shall be those who were employed on the last pay date prior to
the filing of the petition, who are employed on the date of the
election, and meet the applicable requirements defining covered
employees set forth [by statute]. Employees not working on
election day because of illness, vacation, leave of absence or
other reason are eligible to vote if they have a reasonable
expectation of continued employment.
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the invitation to return to work.
6. A mail ballot election is conducted in the following
manner: Ballots and envelopes are mailed to employees identified
as eligible to vote approximately two weeks prior to the date on
which they will be counted. The voter marks his or her ballot
and then places it inside an envelope marked "Secret Ballot
Envelope." The secret ballot envelope is then placed inside
another envelope marked "Mail Envelope." The mail envelope must
be signed by the voter in a space provided. At the ballot count,
the Board agent checks the name on the mail envelope against the
list of names provided by the employer, in order to authenticate
voter eligibility.[fn]3 Once confirmed as a ballot from an
eligible employee, the secret ballot envelope is removed from the
mail envelope; the mail envelope is set aside prior to the
counting of ballots, in order to insure voter anonymity. The
ballots are then tabulated.
7. The Board agent counted the ballots on November 10,
1998, as scheduled. Neither party designated an election
observer or sent a representative to observe the ballot count.
The Board agent certified that, as a result of the ballot
tabulation, the Teamsters were duly elected as the exclusive
representative of the Town of Boothbay's dispatchers unit.
8. On the same day as the date of the ballot count, the
Board agent mailed a copy of the election certification to each
of the parties. Ms. Smith received her copy of the certification
on or about November 13, 1998. It was at this point in time that
she contacted the Board's election agent to advise the Board that
Ms. Lorrain had resigned prior to the ballot count.
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3 It is at this point in the process that either party's
election observer may challenge the eligibility of a voter. Rule
3.07(B) provides in part: All challenges to mail ballots which
are based on or concern the identity of the voter or voter
eligibility . . . shall be raised prior to the removal of the
"Secret Ballot Envelope" from the "Mail Envelope."
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DISCUSSION
This is a case of first impression for the Board. We have
never addressed the issue whether it is appropriate for the Board
to entertain a post-certification challenge to the eligibility of
a person who voted in an election.[fn]4 We are presented with
this issue in a case where the challenged voter, in hindsight,
was clearly ineligible to vote.[fn]5 The ineligibility of the
voter in question does not affect our analysis or our conclusion
that we should not consider post-election challenges to voter
eligibility.
We begin our analysis with an examination of the Rules and
Procedures of the Board concerning elections. The rules
contemplate post-election objections to any action of the Board
agent in conducting an election,[fn]6 and the rules permit a
post-election objection to the conduct of any party to the
election;[fn]7 however, the rules do not provide a procedure for
post-election
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4 In 1971, the Public Employees Labor Relations Appeals
Board, without discussion, refused to permit a post-election
challenge by an employer to the eligibility of three voters
included in their list of eligible voters. The Appeals Board
simply stated that they agreed with the Deputy Commissioner that
the balloting would stand since the point was not timely raised.
Maine School Administrative District No. 1 and A.F.S.C.M.E., AFL-
CIO, Pine Tree Council No. 74 and M.S.A.D. No. 1 Association of
Bus Drivers, Custodians and Mechanics, No. 71-A-01 (P.E.L.R.A.B.
January 22, 1971).
5 Ms. Lorrain resigned effective October 29, 1998, and the
ballot count was on November 10, 1998. Even if Ms. Lorrain was
entitled to accumulated leave which would have included the date
of the ballot count, she did not have a "reasonable expectation
of continued employment" on election day. See Rule 3.04 (A).
6 Rule 3.09 provides that any party who objects to the
actions of Board staff in the conduct of an election shall file
written objection with the Board within five working days after
the results of the election are reported. The Town's objection
here does not concern any impropriety on the part of the Board
agent who conducted this election and we specifically find that
the agent complied with every aspect of the election rules.
7 Rule 3.10 provides that any objection to the conduct of a
party affecting the results of an election shall be by a
prohibited practice complaint.
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challenges to the eligibility of a voter. We conclude that the
omission of a specific procedure for post-election challenges of
this nature was purposeful and that such challenges may not be
framed as "objections" to an election.
Rule 3.07 (C) specifically provides that all challenges to
mail ballots which are based on voter eligibility, and which are
made pursuant to Rule 3.08, shall be raised prior to the removal
of the secret ballot envelope from the mail envelope at the time
the ballots are counted. Rule 3.08 permits challenges to the
eligibility of prospective voters and elaborates a process for
challenging a ballot prior to its being counted. From this we
conclude that once a ballot is opened and counted, its validity
can no longer be challenged.
There are sound policy reasons and long-standing precedent
in federal labor law for our conclusion.[fn]8 In 1946, the
United States Supreme Court addressed the propriety of the
National Labor Relations Board's (NLRB) refusal to accept an
employer's post-election challenge to the eligibility of a
voter.[fn]9 In that case, as in the case before us now, the
challenged voter had been included on the list of eligible voters
supplied by the employer but, at the time of the election, was no
longer employed.
The Court approved the NLRB's requirement that challenges to
the eligibility of voters be made prior to the actual casting of
ballots. The Court determined that the NLRB's policy gives a
desirable and necessary finality to elections, and is a
justifiable and reasonable adjustment to the democratic process.
In the A.J. Tower case, the Court enumerates sound policy
reasons for its decision to deny post-election challenges to the
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8 In interpreting the Municipal Public Employees Labor
Relations Act, it is reasonable for the Board to look for
guidance to parallel federal law found in the National Labor
Relations Act and decisions thereunder. Baker Bus Service v.
Keith, et al., 428 A.2d 55, 56 n.3 (Me. 1981).
9 NLRB v. A.J. Tower Company, 329 U.S. 324, 19 LRRM 2128
(1946).
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eligibility of voters which we find compelling. Such challenges
would: invade the secrecy of the ballot, invite unwarranted and
dilatory claims by defeated candidates, and perpetuate before the
NLRB and the courts the "excitement, strife and animosities"
which, for the sake of labor stability, ought to terminate with
the close of the polls. NLRB v. A.J. Tower Co., 19 LRRM at 2131.
In addition, the Court noted that its decision to deny such
challenges in union elections is consistent with the general
rule, universally recognized in political and corporate
elections, that once a ballot is cast without challenge, and its
identity lost, its validity cannot later be challenged. Id.
We do not know why Town officials failed to challenge this
voter's eligibility prior to the ballot count. The town manager
and the police chief were aware of Ms. Lorrain's resignation days
before the ballot count. They could have contacted the Board
agent by telephone to raise the issue of Ms. Lorrain's
ineligibility to vote, or they could have attended the ballot
count and raised the issue at that time. Instead, the Board was
not alerted to this problem until the town manager received the
results of the election.
While there is no evidence, or even a suggestion, that the
Town of Boothbay intentionally waited for the results of the
election to challenge the Board's certification, the Board's
election rules, and our conclusion in this case, protect public
sector bargaining agent elections from the danger of fraud and
abuse and promote labor stability.
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),
we hereby AFFIRM the certification of the results of the
November 10, 1998, representation election and DISMISS the Town
of Boothbay's objection to election.
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Dated at Augusta, Maine, this 22nd day of February, 1999.
MAINE LABOR RELATIONS BOARD
The parties are hereby advised
of their right, pursuant to /s/___________________________
26 M.R.S.A. 968(4) (Supp. Peter T. Dawson
1998), to seek review of this Chair
decision and order by the
Superior Court. To initiate
such a review, an appealing
party must file a complaint /s/__________________________
with the Superior Court within Karl Dornish, Jr.
fifteen (15) days of the date Employer Representative
of issuance hereof, and
otherwise comply with the
requirements of Rule 80B of
the Maine Rules of Civil /s/___________________________
Procedure Wayne W. Whitney
Alternate Employee
Representative
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