STATE OF MAINE MAINE LABOR RELATIONS BOARD
No. 99-UD-04
Issued: November 30, 1998
___________________________________
)
MAINE STATE EMPLOYEES ASSOCIATION, )
SEIU LOCAL 1989, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
MAINE JUDICIAL DEPARTMENT, )
)
Respondent. )
___________________________________)
INTRODUCTION
This is a unit determination proceeding that was initiated
on August 13, 1998, when Timothy L. Belcher, Esq., a representa-
tive of the Maine State Employees Association, Local 1989, SEIU
(the "Union"), filed a petition for unit determination with the
Maine Labor Relations Board ("Board" or "MLRB"). The petition
was filed pursuant to paragraph 4 of the Supreme Judicial Court,
Administrative Order in Regard to Judicial Employees Labor
Relations, SJC-128, (effective July 25, 1984), Me. Rep. 467-478
A.2d LXXXIX-XCIV ("Administrative Order") and pursuant to section
1286 of the Judicial Employees Labor Relations Act ("Act" or
"JELRA"), 26 M.R.S.A. ch. 14. The Union's petition sought to
create a bargaining unit composed of Financial Screeners or
Financial Investigators. The Respondent Judicial Department
("Respondent") filed a motion to dismiss the petition on the
grounds that the MLRB does not have jurisdiction over this
matter.
The Judicial Department was represented by Linda D. McGill
and the Union was represented by Timothy L. Belcher. The parties
were able to stipulate to the facts of the case and agree upon
exhibits. The parties presented written briefs on the jurisdic-
tional question, the last of which was received on November 6,
1998. As evidence beyond the stipulations was not necessary for
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the disposition of this case and neither party requested oral
argument, a hearing was not held.
I conclude, for the reasons stated below, that the MLRB does
not have jurisdiction over this matter and therefore I GRANT the
Respondent's Motion to Dismiss the petition.
STIPULATIONS
The parties stipulated to the following facts:
1. The Maine Judicial Department is the public employer
covered by the Maine Judicial Employees Labor Relations Act,
26 M.R.S.A. 1281-1294 (the "Act"). The Act is administered by
the Maine Labor Relations Board ("MLRB").
2. The Maine State Employees Association, SEIU Local 1989,
("MSEA") is a labor organization under that Act, and is the
certified bargaining agent for certain employees of the Judicial
Department.
3. On or about August 11, 1998, the MSEA filed a petition
for Certification of Representative ("RC") with the National
Labor Relations Board ("NLRB"), seeking certification as the bar-
gaining agent for a unit of eight persons performing work as
"Financial Screeners" or "Financial Investigators," ("Financial
Screeners") and identifying the employer as Manpower, Inc.
4. The NLRB exercised jurisdiction over the RC petition,
and is conducting a mail ballot election, with ballots to be
counted on October 2, 1998, pursuant to a stipulated election
agreement.
5. On or about August 13, 1998, MSEA filed a petition for
Unit Determination ("UD") with the Maine Labor Relations Board,
seeking certification as the bargaining agent for a unit of eight
persons performing work as "Financial Screeners" or "Financial
Investigators," ("Financial Screeners") and identifying the
employer as the Maine Judicial Department.
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6. The Judicial Department challenged the MLRB's jurisdic-
tion over that petition.
7. Manpower, Inc., has a contract with the Judicial Depart-
ment for the provision of certain services, including the services
provided by the Financial Screeners. The terms and conditions of
employment for employees performing services under this contract
are negotiated between the parties to that agreement.
8. The eight members of the proposed unit have worked in
their current capacity for as long as six years. Financial
screening services involve screening and processing criminal
defendants' claims of indigence and requests for counsel. The
work is performed in court offices. Equipment is provided by the
Judicial Department. Costs of travel and other out-of-pocket
expenses are paid by the Judicial Department through reimburse-
ment to Manpower, Inc.
9. The members of the proposed unit are recruited, hired,
trained, evaluated, disciplined, and otherwise supervised by the
Judicial Department. The Judicial Department sets their hours,
defines their responsibilities and performance standards, super-
vises the quantity and quality of the work performed, and sets
their terms and conditions of employment, except as described
below.
10. Manpower issues paychecks to the individuals performing
financial screening services, and Manpower is reimbursed by the
Judicial Department for both the money paid to the individuals
and an additional contract fee. Manpower provides workers'
compensation insurance and a health insurance program, in which
individuals performing financial screening may enroll at their
own expense.
11. The eight current Financial Screeners deal with repre-
sentatives of Manpower, Inc., on matters relating to payroll and
insurance.
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12. If the Judicial Department is finally determined to be
an employer of the Financial Screeners, pursuant to the Act, the
Judicial Department stipulates that the proposed unit is an
appropriate unit for collective bargaining.
EXHIBITS
The parties agreed to the admission of the following joint
exhibits:
Joint Exhibit #1 August 21, 1998 Letter from Acting Regional
Director of National Labor Relations Board re
Manpower, Inc., Case 1-RC-20882
Joint Exhibit #2 National Labor Relations Board Stipulated
Election Agreement Approved August 21, 1988.
Joint Exhibit #3 Request for Proposals, State of Maine -
Judicial Branch
Joint Exhibit #4 Administrative Office of the Court, Bid
Return Form Submitted by Manpower
Joint Exhibit #5 Contract for Special Services, Administrative
Office of the Courts and Manpower Temporary
Services, Approved Dec. 28, 1997
JURISDICTION
My jurisdiction to decide this matter derives from para-
graph 4 of the Supreme Judicial Court's Administrative Order in
Regard to Judicial Employees Labor Relations and section 1286 of
the Judicial Employees Labor Relations Act. See, Maine State
Employees Association and State of Maine, Judicial Department,
No. 98-UC-01, slip op. at 2-9 (Jan. 21, 1998).
DISCUSSION
In support of its Motion to Dismiss, the Respondent Judicial
Department contends that doctrine of federal labor law pre-emption
precludes the Board from exercising jurisdiction over the Union's
petition. The Respondent points to fact that the National Labor
Relations Board has already exercised jurisdiction over the
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representation petition filed by the Union regarding the same
Financial Screeners that are at issue here. The Respondent argues
that the NLRB's jurisdiction is exclusive and that failure of the
Board to dismiss this petition would be contrary to principles of
federal pre-emption set forth in Garner v. Teamsters Local 776,
346 U.S. 485, 33 LRRM 2218 (1953). They contend that having two
agencies with different substantive rules of law exercising
jurisdiction over the same group of employees would create the
very sort of conflict the doctrine of pre-emption is designed to
avoid. Brief of Respondent Maine Judicial Department at 2.
The Union argues that the National Labor Relations Board's
decision in Management Training Corp., 317 NLRB 1355, 149 LRRM
1313 (1995), in which the NLRB changed its approach to jurisdic-
tion over private employers who are closely aligned with govern-
mental entities, permits the MLRB to exercise jurisdiction over
the Union's petition. The Union argues that, using the right-to-
control test, the Financial Screeners are employees of the
Judicial Department and that the Financial Screeners are also
employees of Manpower. Union's Brief at 3-7. They argue that,
as joint employers, the Judicial Department and Manpower, Inc.,
are subject to the separate jurisdictions of the Maine Labor
Relations Board and the National Labor Relations Board. The
Union contends that the NLRB has only asserted jurisdiction over
those aspects of Manpower's relations to the judicial screeners
that are controlled by Manpower and that the MLRB is free to
exercise its jurisdiction over the remaining aspects of employ-
ment that are controlled by the Judicial Department. Union's
Brief at 10-11.
Contrary to the Union's assertion, the NLRB's Management
Training decision does not affect the scope of jurisdiction the
NLRB will exercise over a private employer when that employer has
close ties to an exempt governmental entity. Management Training
merely alters the method by which the NLRB determines whether or
not it will exercise jurisdiction. 317 NLRB 1355, 149 LRRM 1313.
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In Management Training, the employer managed a job corps center
pursuant to a contract with the United States Department of Labor
(DOL). The employer was required to submit with its contract
proposal its staffing tables, wage ranges, and a description of
its personnel policies regarding wage raises, compensatory time,
overtime, holidays, sick leave, severance pay and benefits. Id.
at 1314. The contract required the employer to submit any
proposed changes regarding these matters to the DOL. Id. The
issue presented was whether the NLRB should exercise jurisdiction
over the employer when these conditions of employment were con-
trolled by the DOL, an exempt governmental entity.
Under the test first established in 1979 in National Trans-
portation and later refined in Res-Care, Inc., the NLRB would
examine both the employer's control over the essential terms and
conditions of employment as well as "the scope and degree of
control exercised by the exempt entity over the employer's labor
relations." Id. at 1314, citing National Transportation, 240
NLRB 565, 100 LRRM 1263 (1979) and Res-Care, Inc., 280 NLRB 670,
122 LRRM 1265 (1986). The NLRB's goal in Res-Care was to ensure
that it exercised jurisdiction over employers who not only met
the definition of employer in Section 2(2) of the Act,[fn]1 but
also those who retained sufficient control over the employment
conditions of its employees to enable it to engage in "meaning-
ful" collective bargaining. Res-Care, 122 LRRM at 1269.
In the 1995 Management Training decision, the NLRB discarded
any effort to assess an employer's ability to engage in "meaning-
ful" bargaining when determining whether to exercise jurisdic-
tion. The NLRB decided instead to inquire only as to whether the
employer met both the definition of employer in the Act and the
applicable monetary jurisdictional standards. Management Train-
____________________
1 Section 2(2) of the National Labor Relations Act excludes
from the definition of employer, among others, " . . . any State
or political subdivision thereof." 29 U.S.C. 152(2).
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ing, 149 LRRM at 1317. The Board described this change with:
In retrospect, we think the emphasis in Res-Care
on control of economic terms and conditions was an
over-simplification of the bargaining process. While
economic terms are certainly important aspects of the
employment relationship, they are not the only subjects
sought to be negotiated at the bargaining table. . . .
It was shortsighted, therefore, for the Board to de-
clare that bargaining is meaningless unless it includes
the entire range of economic issues.
. . .
[In addition,] by requiring the employer to have
control of economic terms before it would assert juris-
diction, the Board seems to have made a judgment,
either directly or indirectly, that not only were
certain contract terms of higher priority than others,
but that such terms must be a part of contract negotia-
tions. This, we think, amounts to the Board's entrance
into the substantive aspects of the bargaining process
which is not permitted under the [Supreme Court] au-
thority cited above.
Id. at 1316.
The NLRB held that it would be improper "to decide whether to
assert jurisdiction based on the Board's assessment of the quality
and/or quantity [of] factors available for negotiation." Id. at
1317. A simple rule of whether the employer met the definition of
employer in the Act and whether the applicable monetary jurisdic-
tional standards were met would address the policy considerations
and reduce the likelihood of litigation. Id.
In the present case, the Union's position on MLRB jurisdic-
tion is based on its erroneous reading of Management Training.
In its brief, the Union claims that Management Training's "dra-
matic change of course is designed to ensure that contractors'
employees retain the right to bargain over those limited issues
under the contractor's control. Whatever authority Manpower
retains as an employer is now clearly and completely within the
jurisdiction of the NLRB." Union's Brief at 10. The Union's
view is an inaccurate characterization of the rationale and
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impact of the case. The stated purpose of the Management Train-
ing decision was to reduce the potential for litigation and get
the NLRB out of the business of deciding as a jurisdictional
matter "which terms and conditions of employment are or are not
essential to the bargaining process" and indirectly making
judgments on the substantive terms of the contract. Id. at 1316.
More importantly, there is nothing in Management Training to
suggest that somehow the scope of the NLRB's jurisdiction is
limited to those issues over which Manpower retains authority as
an employer. Rather than establishing a limited jurisdiction
(thereby leaving an opening for the MLRB as the Union argues),
the NLRB specifically considered the problem encountered when the
employer has contracted away some of its management rights:
Our dissenting colleague asserts that there is an
inconsistency in applying the Act's obligation to bar-
gain in good faith to an employer who may hypothetically
lack the ability to alter a particular mandatory subject
of bargaining. We disagree. Because of commercial
relationships with other parties, an inability to pay
due to financial constraints, and competitive consider-
ations which circumscribe the ability of the employer to
grant particular demands, the fact is that employers are
frequently confronted with demands concerning matters
which they cannot control as a practical matter or
because they have made a contractual relationship with
private parties or public entities. . . .
We find it unnecessary to consider specifically the
circumstances under which the Board would or would not
find that an employer had committed an unfair labor
practice by failing to bargain over a matter asserted to
be beyond the employer's control, as it is well settled
that such issues are not relevant to the Board's juris-
diction. . . . Thus, without question, an employer's
voluntary decision to contract away some of its authori-
ty over terms and conditions of employment should not be
determinative of the Board's jurisdiction.
Id. at 1317.[fn]2
____________________
2 Even the Management Training dissent notes that "[t]he Act
does not, of course, provide for a limited Section 9 certifica-
tion. A Section 9 certification gives a union the right to
bargain about all mandatory terms and conditions of employment."
Id. at 1319 (emphasis in original).
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While the NLRB recognized that the dynamics of bargaining
may be altered in the face of a government contract, the NLRB
also noted that the situation of needing the approval of the
contracting agency is not particularly unique. "Even if the
Government rejects a negotiated wage increase and the employer
has to fund the increase out of its own profits, . . . that
burden is no greater than that carried by any contractor operat-
ing under a cost-plus-fixed-fee contract." Id. at 1316. Clear-
ly, the NLRB would not have made this comparison if it had
intended to exercise jurisdiction only over limited issues. On
the contrary, the NLRB expected that the employees themselves
would consider the nature of the contract with the governmental
entity on their way to the voting booth. The NLRB noted:
. . . [The employer] must, by hypothesis, control some
matters relating to the employment relationship, or
else it would not be an employer under the Act. In our
view, it is for the parties to determine whether bar-
gaining is possible with respect to other matters and,
in the final analysis, employee voters will decide for
themselves whether they wish to engage in collective
bargaining under those circumstances.
Id. at 1317.
Perhaps the most compelling argument against the MLRB exer-
cising jurisdiction in this case is the fact that NLRA pre-
emption is so extensive and well established. As a general rule,
in the absence of an express pre-emption provision in the federal
statute, state action will be pre-empted if it conflicts with
federal law or frustrates the purpose of the federal law or if
Congress intended to occupy the field. See, e.g., Building and
Construction Trades Council v. Associated Builders and Contrac-
tors of Mass./Rhode Island, 507 U.S. 218, 113 S.Ct. 1190 (1993)
(State action as a proprietor is not subject to the same pre-
emption analysis as state action as a regulator of conduct).
With respect to the NLRA, the Supreme Court held in Garner v.
Teamsters that even if Pennsylvania law provided an identical sub-
stantive right, the State of Pennsylvania had no jurisdiction to
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hear a case to enjoin picketing because that issue was within the
jurisdiction of the NLRB. 346 U.S. 486, 74 S.Ct. 161 (1953).
The Court noted, "when two separate remedies are brought to bear
on the same activity, a conflict is imminent." Id. at 498-99.
The Supreme Court has further defined NLRA pre-emption to preclude
state regulation of those activities protected or prohibited by
the NLRA, as well as those activities that are only arguably
protected or prohibited by the NLRA. San Diego Building Trades
Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773 (1959) (California
court did not have jurisdiction to award damages resulting from
peaceful picketing). In addition, states may not regulate areas
that Congress intended to be left unregulated, such as the
parties' self-help activities. Machinists v. Wisconsin Employment
Relations Commission, 427 U.S. 132, 96 S.Ct. 2548 (1976) (State
could not declare unlawful a concerted refusal of union members to
work overtime because Congress intended to leave such economic
pressure unregulated by states).
Management Training does not contain even a whisper of an
intent to change the pre-emption doctrine by allowing state agen-
cies to assert jurisdiction over areas protected or prohibited by
the NLRA. It is mind-boggling to consider the complexities that
would arise if the NLRB and the MLRB had concurrent jurisdiction
over the same employees when the bounds of the jurisdiction would
be dependent upon the terms of the contract between Manpower and
the Judicial Department. Would the employers be expected to be
at the table together? Would the dispute resolution procedures
established under Maine law be required? What about self-help?
Theoretically, different unions could be certified by the two
agencies. What if both unions were trying to get its respective
employer to gain "control" over the same mandatory subject of
bargaining? Given the complexities involved, one would think
that if the NLRB really intended to alter 50 years of pre-emption
doctrine by allowing a state agency to exercise concurrent juris-
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diction, they would have done so explicitly.[fn]3
In the present case, there is no question that the NLRB has
already asserted jurisdiction over the Manpower employees working
as Financial Screeners in the Judicial Department. In response
to the Union's petition for Certification of Representation, the
NLRB exercised jurisdiction and scheduled an election. There is
nothing in the Stipulated Election Agreement nor in any other
NLRB document in the record that suggests that the NLRB intended
to limit the scope of its jurisdiction.
In conjunction with its misreading of Management Training,
the Union's position is dependent upon a conclusion that the
Judicial Department is an employer of the Financial Screeners for
those aspects of employment not controlled by Manpower. They
argue that the pre-emption doctrine does not apply because the
States are specifically exempt from the NLRB's jurisdiction by
section 2(2) of the NLRA. I conclude that, because the NLRB took
jurisdiction over the Financial Screeners, the doctrine of pre-
emption applies and requires the dismissal of the Union's peti-
tion. It is unnecessary, therefore, to consider whether the
Judicial Department is an employer or joint employer of the
Financial Screeners.
____________________
3 The NLRA does explicitly permit the NLRB to decline or
cede jurisdiction under two circumstances, neither of which
applies here. Section 14(c) of the Act permits the NLRB to
decline jurisdiction when the effect on commerce is insubstantial
and, in such cases, States are permitted to assume jurisdiction.
Section 10(a) allows the NLRB to cede jurisdiction to a State
unless the applicable state statute is inconsistent with the
federal Act.
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ORDER
On the basis of the foregoing stipulations and discussion,
and pursuant to the authority granted by paragraph 4 of the
Administrative Order and 26 M.R.S.A. 1286, the Respondent's
Motion to Dismiss is GRANTED.
Dated at Augusta, Maine, this 30th day of November, 1998.
MAINE LABOR RELATIONS BOARD
/s/________________________
Lisa Copenhaver
Attorney Examiner
The parties are hereby advised of their right to appeal this
report to the Maine Labor Relations Board pursuant to 26 M.R.S.A.
1288(2) (Supp. 1997) and paragraph 6(2) of the Supreme Judicial
Court, Administrative Order in Regard to Judicial Employees Labor
Relations, SJC-128. 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.
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