Council 74 AFSCME v. City of Augusta and MLRB, No. CV-81-477, affirming
Board decision no. 81-A-03, modifying 81-UD-20.

STATE OF MAINE                                     SUPERIOR COURT
KENNEBEC, SS                                       CIVIL ACTION
                                                   Docket No. CV81-477
COUNCIL NO. 74, AMERICAN           )
FEDERATION OF STATE,               )
COUNTY AND MUNICIPAL               )
EMPLOYEES, AFL-CIO,                )
             Plaintiff             )
v.                                 )
                                   )               OPINION AND ORDER
CITY OF AUGUSTA                    )
and                                )
             Defendant             )
     This matter is before the Court on appeal by the plaintiff,
Council No. 74, American Federation of State, County and Municipal
Employees, AFL-CIO (AFSCME) from a determination by the Maine Labor
Relations Board (MLRB) that the employer, City of Augusta, had
standing pursuant to 26 M.R.S.A.  967(2) to file a petition for
election to test the validity of the plaintiff union's continued
majority status as a representative of the "Augusta City Hall
employees'" bargaining unit.
     The facts are not in serious dispute.  In April of 1970
the Department of Labor and Industry, predecessor to the MLRB,
issued a report establishing a bargaining unit composed of certain
clerical workers employed by the City of Augusta.  On May 27, 1970,
a representative election was held for this clerical employees'
bargaining unit.  AFSCME was selected as a collective bargaining
representative as a result of this election.  After this election,
the union did virtually nothing for the employees in this bargaining

unit for more than ten years.  Little, if any, collective bargaining
took place between AFSCME and the city, despite the union's
certification as bargaining agent.  There were no collective
bargaining agreements consummated, and the union did not assist
members of this bargaining unit in grievance proceedings or otherwise
represent the employees during the 1970's.
     In the summer of 1980, AFSCME apparently discovered this
bargaining unit, and on August 29, 1980, sent a letter to the
City Manager requesting negotiations on a contract for the clerical
employees' bargaining unit.  In response the city challenged the
union's status as a proper bargaining representative of the clerical
employees.  Instead of directly responding to this challenge,
the union, in November of 1980, sent another letter to the city
requesting that the city negotiate with it as the bargaining agent.
     After receipt of the second letter the city, on November 18, 1980
filed with the MLRB a petition seeking an election of a bargaining
agent for the City Hall employees and for "reaffirmation of bargaining
unit."  AFSCME moved to dismiss this petition on the grounds that
the city, as an employer, lacked standing to petition for an
election in a bargaining unit already represented by a certified
bargaining agent.
     The case was initially presented before a hearing examiner at
the MLRB.  The union refused to participate in the hearing
examiner proceeding, apparently to protect what is perceived as its
legal position.  After conducting a hearing, apparently with
participation principally by the city as the employer, the hearing
examiner ruled that the bargaining unit no longer existed and that
it was not necessary for him to act on the city's petition for

an election.  Despite its refusal to participate in the
proceeding at the hearing examiner level, the AFSCME filed a timely
appeal to the full MLRB.
     There may be a serious question as to whether the union's
refusal to participate in the proceeding before the hearing
examiner denied it standing to appeal the decision of the hearing
examiner to the full MLRB.  Because the MLRB has primary jurisdiction
to interpret its rules, including its rules of standing for appeal
to the full MLRB, this Court will assume, for the purposes of
this proceeding, that the MLRB determined that the union had standing
to appeal the hearing examiner's decision, despite the union's
failure to participate in the hearing examiner proceeding.
     This Court must independently examine questions of standing,
even if not raised by the parties, Walsh v. City of Brewer, Me.
315 A.2d 200 (1974).  However, as the union was given standing to
appeal the hearing examiner's decision before the full MLRB,
this Court, in this proceeding, will look only to the union's
unquestioned standing to appeal the decision of the MLRB to
this Court.  The Court will not go behind the implicit determination
by the MLRLB that the union had standing to appeal from the
hearing examiner to the Board.  However, the Court must note that
the union took a considerable legal risk in its refusal to participate
before the hearing examiner once it was clear that the city's
petition for election was not going to be summarily dismissed as
it had requested.
     On appeal, the full MLRB upheld the determination of the
hearing examiner that the city had standing to file the petition for

election.  It reversed the determination that the clerical unit
was no longer viable.  Instead, it remanded the case to the
MLRB staff to (1) conduct unit determination procedures and
then (2) conduct a representation election for the unit.  The
union has appealed from that decision to this Court.
     The basic issue in this case is whether the provisions of
the Public Employees' Labor Relations Act, and specifically
26 M.R.S.A.  967(2) give the city standing to seek a
representation election for a bargaining unit where a bargaining
agent has already been designated for that unit.
     26 M.R.S.A.  967(2) provides, in part:
     The executive director of the board, or his designee,
     upon signed request of a public employer alleging
     that one or more public employees or public employee
     organizations have presented to it a claim to be
     recognized as the representative of a bargaining unit of
     public employees, or upon signed petition of at least
     30% of a bargaining unit of public employees that they
     desire to be represented by an organization, shall
     conduct a secret ballot election to determine whether the
     organization represents a majority of the members of the
     bargaining unit.

     . . . . .

     No question concerning representation may be raised within
     one year of a certification or attempted certification.
     Where there is a valid collective bargaining agreement
     in effect, no question concerning 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.  The not more than 90-day nor less than 60-day
     period prior to the expiration date of an agreement
     regarding unit determination and representation shall
     not apply to matters of unit clarification.
     This statute specifically authorizes the public employer
to petition for an election when a public employee organization has
presented a claim to be recognized as a representative of a
bargaining unit.  No where does the statute suggest that this
request can only be presented once, by the public employer, before
the first bargaining unit designation.  The statute would appear
to authorize, and certainly cannot be read to preclude, the
employer's standing to request an election where a bargaining agent
presents a claim for continued recognition on the facts of this
case, where the claim is presented after ten years of complete
abdication of collective bargaining responsibilities during which
time significant changes have occurred to the composition of the
previously designated bargaining unit.  Accordingly, the Court
believes that the Board's determination that the city employer
had standing to petition for an election of the City Hall
employees' bargaining unit is correct.  The Court has reviewed
the authority cited by the parties.  In the Court's view, the
examination of the authorities stated in the opinion of the MLRB
represents an accurate statement of the law.  Nothing would be
gained by simple repetition of the careful analysis by the MLRB
in this decision.  The findings of fact stated by the MLRB
are supported by the evidence in the record, and the MLRB made
no errors in their determinations as to the law based on the
facts they found.
     The Court recognizes the concern expressed by the AFSCME
that a holding that public employers have general authority to
secure representation elections once a year could be used by irresponsible
public employers to improperly harass collective bargaining agents.
This Court's holding, affirming the view of the MLRB, is not so broad.
In this case there was no collective bargaining agreement in
effect, no collective bargaining or representation activity had
occurred for ten years, and the MLRB found that organization and

personnel changes had drastically altered the previous bargaining
unit.  On such facts, the MLRB was amply justified in allowing
the city to petition for and secure a new election.  The issue of
whether a public employer has a right to annual representation
elections on request, when dealing with an active bargaining
agent, where a collective bargaining agreement is in effect, must
await another case and another day for determination.
     Accordingly, the decision and order of the MLRB in this
case will be affirmed.
     Therefore, the Court ORDERS and the entry shall be:
     1.  Plaintiff's complaint for review of the decision and
order of the Maine Labor Relations Board is DENIED.
     2.  The order of the Maine Labor Relations Board is AFFIRMED.

Dated:  March 30, 1982            /s/__________________________
                                  Donald G. Alexander
                                  Justice, Superior Court