STATE OF MAINE MAINE LABOR RELATIONS BOARD
________________________________________
)
COUNCIL 74, AMERICAN FEDERATION OF )
STATE, COUNTY AND MUNICIPAL EMPLOYEES, )
AFL-CIO, of Augusta, County of Kennebec )
and State of Maine )
)
Complainant )
v. )
)
STATE OF MAINE, by and through its ) DECISION AND ORDER
employees and agents )
) ON
Respondent )
) PROHIBITED PRACTICE COMPLAINT 78-01
MAINE STATE EMPLOYEES ASSOCIATION )
) AND
Intervenor )
) LETTERS OF OBJECTION TO THE ELECTIONS
TEAMSTERS LOCAL UNION NO. 48 )
) CONDUCTED IN THE
Intervenor )
) OPERATIONS, MAINTENANCE AND SUPPORT
________________________________________)
) SERVICES UNIT
COUNCIL 74, AMERICAN FEDERATION OF )
STATE, COUNTY AND MUNICIPAL EMPLOYEES ) AND THE
AFL-CIO, )
) PROFESSIONAL AND TECHNICAL SERVICES UNIT
and )
)
STATE OF MAINE, OFFICE OF STATE )
EMPLOYEE RELATIONS, )
)
and )
)
MAINE STATE EMPLOYEES ASSOCIATION )
)
and )
)
TEAMSTERS LOCAL UNION NO. 48 )
________________________________________)
This case comes to the Maine Labor Relations Board by way of a Prohibited Practice
Complaint dated July 6, 1977 and filed by Charles W. Sherburne, Executive Director,
Council No. 74, American Federation of State, County and Municipal Employees, AFL-CIO,
on July 6, 1977, and by two letters objecting to the conduct of the elections in the
Operations, Maintenance and Support Services Unit and the Professional and Technical
Services Unit dated July 6, 1977 and July 13, 1977 and filed by Charles W. Sherburne,
Executive Director, Council 74, American Federation of State, County and Municipal
Employees, AFL-CIO, on July 6, 1977 and July 14, 1977, respectively. An Amended Pro-
hibited Practice Complaint was dated July 14, 1977 and filed by Charles W. Sherburne
On July 14, 1977, A Response to the Amended Complaint was dated July 28, 1977, and
filed by John J. Sears, Esquire, Counsel for the State of Maine, Office of State Em-
ployee Relations on July 28, 1977.
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A hearing was held on the Prohibited Practice Complaint and the Objections to
the Elections on Tuesday, August 2, 1977, and Monday, August 8, 1977, Chairman Walter
E. Corey presiding with Michael Schoonjans, Employee Representative and Robert D.
Curley, Employer Representative. On August 8, 1977, Motions to Intervene in the Pro-
hibited Practice Complaint proceeding were made by John J. Finn, Esquire, in behalf
of the Maine State Employees Association and Jonathan Axelrod, Esquire, in behalf of
Teamsters Local Union No. 48 and granted by the Board. After filing of memoranda of
law by the parties, the Maine Labor Relations Board proceeded to deliberate on this
matter on September 30, 1977.
JURISDICTION
The parties have not challenged the jurisdiction of the Maine Labor Relations
Board, and we conclude that the Board has jurisdiction to hear and render a decision
in this matter pursuant to 26 M.R.S.A., 968, 979-G and 979-H.
FINDINGS OF FACT
Upon review of the testimony given at the hearing as well as the pleadings and
records of the Maine Labor Relations Board, we find:
1) By letter dated April 29, 1977, the Maine Labor Relations Board
(hereinafter referred to as the "Board") notified the Maine
State Employees Association (MSEA), Council 74, American Federa-
tion of State, County and Municipal Employees, AFL-CIO, (Council
74), Local #48, International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen and Helpers of America (Teamsters Local 48)
and the State of Maine, Office of State Employee Relations
(OSER) that showings of interest had been received by the Board
for an election in the Operations, Maintenance and Support Ser-
vices Unit (OMS Unit) and the Professional and Technical Services
Unit (P&T Unit). The showings of interest were sufficient in the
OMS Unit for MSEA to appear on the election ballot as petitioner
and for Council 74 and Teamsters Local 48 to appear as intervenors.
The showings of interest were sufficient in the P&T Unit for MSEA
to appear on the election ballot as petitioner and for Council 74
to appear as intervenor.
2) A pre-election conference was held on Thursday, May 5, 1977, with
representatives of the Board, MSEA, Council 74, OSER and Teamsters
Local 48 in attendance. As a result of that conference, several
arrangements were established for the conduct of the OMS Unit and
P&T Unit elections, including the following:
a) The parties agreed that the envelopes, ballots, notices
and letters of instruction used in the recent Adminis-
trative and Institutional Unit elections were acceptable
and the same general format would be used in the elections
for the OMS Unit and P&T Unit.
b) In accordance with the agreed format, second ballots would
be mailed in the event a person believing himself to be a
duly qualified voter calls for a ballot, alleging that he
had not received one. The same procedure would be used for
those persons who believe themselves to be eligible voters
whose names do not appear on the voting list. This was the
same procedure that was followed in the Administrative and
Institutional unit balloting.
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c) Voting lists would be made available to the MLRB and the
parties by OSER on or before May 26, 1977, and in accordance
with statute.
d) It was established that the mail balloting procedures for
both units should be conducted concurrently and that the
mailing date of the ballots for both units would be June 8,
1977.
e) Election notices would be mailed to the parties on or before
May 24, 1977, and would be posted on or before May 29, 1977.
f) The period for employees to request duplicate ballots would be
from June 13, 1977 to June 20, 1977.
g) The cut-off date for receipt of ballots would be 9:00 a.m. on
Wednesday, June 29, 1977, at which time the duly authorized
representative would pick up the ballots for both units at the
Augusta Post Office. To the extent possible, the ballots for
the OMS Unit would be counted and tabulated on June 29, 1977.
To the extent possible, the ballots for the P&T Unit would be
counted and tabulated on June 30, 1977.
h) The Board would retain its WATS line with the number 800-452-1974
during the course of the elections.
3) The notice of bargaining agent election printed by the MLRB and distributed
to the parties and to OSER for posting at work locations where notices were
normally posted for the benefit of employees contained, inter alia, the
following provisions:
Any employee believing himself eligible to vote in this election who
has not received a ballot on or before June 13, 1977, may obtain a
duplicate ballot by calling 1-800-452-1974 on or before June 20, 1977,
identifying himself, and stating the reason for his request. All ballots
to be counted in this election must be received by the Maine Labor
Relations Board in the postage paid mail ballot envelope provided with
the ballot at the address posted thereon on or before 9:00 a.m. June 29,
1977 . . . .
The voter must sign the "Mail Envelope" in the appropriate space. Failure
to do so may invalidate the ballot. The mail envelope will be used to
authenticate voter eligibility but will be discarded prior to counting to
insure voter anonymity.
A draft copy of the notice of bargaining agent election for the OMS Unit
election containing the above-quoted provisions was mailed by the Board
on May 23, 1977, to MSEA, Council 74, Teamsters Local 48 and OSER by cer-
tified mail, return receipt requested, and the return receipts were in
fact signed and returned to the Board.
A draft copy of the notice for bargaining agent election for the P&T Unit
election containing the above-quoted provisions was mailed by the Board on
May 23, 1977, to MSEA, Council 74 and OSER by certified mail, return re-
ceipt requested, and the return receipts were in fact signed and returned
to the Board.
4) On May 26, 1977, in conformance with the May 5, 1977 agreements, OSER made
available to the MLRB and the parties a list of eligible voters.
5) The list of eligible voters was inaccurate probably due to an error either in
the preparation or the handling of a computer card and approximately 71 names
and addresses of eligible voters were not included in the eligibility list of
1961 names and addresses for the OMS Unit. Approximately 32 mail ballot en-
velopes were returned to the Board as undeliverable out of 1,961 mailed in the
OMS Unit election. Approximately 41 mail ballot envelopes were returned to the
Board as undeliverable out of 3,171 mailed in the P&T Unit election.
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6) On June 29, 1977, a representative of the Board took delivery of
approximately 2,784 mail ballot envelopes held by the United States
Post Office in Augusta, Maine, deliverable by business reply mail to
the Maine Labor Relations Board. The ballots for the OMS Unit elec-
tion were segregated and counted on June 29, 1977, and the Executive
Director of the Board issued the following election report and certi-
fication:
ELECTION REPORT
Members of the Unit and eligible to vote 1961
Ballots cast 1107
Ballots for the proposition that Maine State Employees As-
sociation SHALL REPRESENT the Operations, Maintenance and 420
Support Services bargaining unit as their bargaining agent
Ballots for the proposition that Council #74, American Fed-
eration of State, County & Municipal Employees, AFL-CIO,
SHALL REPRESENT the Operations, Maintenance and Support 262
Services bargaining unit as their bargaining agent
Ballots for the proposition that Teamsters Local Union #48
SHALL REPRESENT the Operations, Maintenance and Support
Services bargaining unit as their bargaining agent 343
Ballots for the proposition of NO REPRESENTATION 11
Ballots with no alternative indicated 0
Ballots spoiled and not counted 1
Bal lots challenged and set aside under the provisions of
Rule 3.06 of the Election Rules 70
ATTEST:/s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
WITNESS:
For Council #74,
For Maine State American Federation of State, For Teamsters Local
Employees County & Municipal Employees Union
Association AFL-CIO #48 For State of Maine
/s/John J.Finn /s/ Kenneth A. Walo /s/ Richard Peluso /s/John J. Sears
C E R T I F I C A T I O N
I, Parker A. Denaco, Executive Director of the Maine Labor Relations Board for the State
of Maine, do hereby certify as a result of a bargaining agent election, the results of
which are noted hereon, above, conducted from June 8, 1977, to June 29, 1977, for the
Operations, Maintenance and Support Services bargaining unit of the State of Maine (that
NO BARGAINING AGENT was elected and a runoff election is required).
Dated at Augusta, Maine this 29th day of June, 1977.
By:/s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
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The ballots for the P&T Unit election were segregated on June 29, 1977, and
counted on June 30, 1977, and the Executive Director of the Board issued the follow-
ing election report and certification:
ELECTION REPORT
Members of the Unit and eligible to vote 3177
Ballots cast 1677
Ballots for the proposition that Maine State Employees
Association SHALL REPRESENT the Professional and Technical 1040
Services bargaining unit as their bargaining agent
Ballots for the proposition that Council #74, American
Federation of State, County & Municipal Employees, AFL-CIO, 423
SHALL REPRESENT the Professional and Technical Services
bargaining unit as their bargaining agent
Ballots for the proposition of NO REPRESENTATION 71
Ballots with no alternative indicated 2
Ballots spoiled and not counted 0
Ballots challenged and set aside under the provisions
of Rule 3.06 of the Election Rules 141
ATTEST:/s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
WITNESS:
For Council #74, American
For Maine State Employees Federation of State, County
Association & Municipal Employees, AFL-CIO For State of Maine
/s/ John J. Finn /s/ Kenneth A. Walo /s/ Jack Sears
C E R T I F I C A T I O N
I, Parker A. Denaco, Executive Director of the Maine Labor Relations Board for the
State of Maine, do hereby certify as a result of a bargaining agent election, the
results of which are noted hereon, above, conducted from June 8, 1977 to June 29,
1977, for the Professional and Technical Services bargaining unit of the State of Maine
(that Maine State Employees Association SHALL REPRESENT the aforesaid unit as the duly
certified bargaining agent).
Dated at Augusta, Maine, this 30th day of June, 1977.
By:/s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
7) As the result of an investigation by the Board of the Post Office procedures
for handling business reply mail addressed to the Maine Labor Relations
Board, on July 7, 1977, approximately 1009 mail ballot envelopes for the OMS
Unit and the P&T Unit elections were discovered and secured in a post office
vault. The newly discovered mail ballot envelopes had been received by the
post office prior to the 9:00 a.m. June 29, 1977 deadline, but the postal
service officials neglected to deliver these ballots to the representative
of the Board on the June 29, 1977 delivery date.
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8) As a result of the newly discovered mail ballot envelopes, the
Board conducted a counting of the newly-found ballots on June 12,
1977. The following is the election report and certification for
the OMS Unit election dated July 12, 1977:
Original Supplemental
ELECTION REPORT Tabulation Tabulation Total
June 29, 1977 July 12, 1977 Tabulation
Members of the Unit and eligible to vote 1,961 1,961 1,961
Ballots cast 1,107 379 1,486
Ballots for the proposition that Maine State
Employees Association SHALL REPRESENT the Opera-
tions, Maintenance & Support Services bargaining 420 138 558
unit as their bargaining agent
Ballots for the proposition that Council #714,
American Federation of State, County & Municipal
Employees, AFL-CIO, SHALL REPRESENT the Operations, 262 104 366
Maintenance & Support Services bargaining unit as
their bargaining agent
Ballots for the proposition that Teamsters Local
Union #48 SHALL REPRESENT the Operations, Mainte-
nance & Support Services bargaining unit as their 343 119 462
bargaining agent
Ballots for the proposition of NO REPRESENTATION 11 2 13
Ballots with no alternative indicated 0 0 0
Ballots spoiled and not counted 1 0 1
Ballots challenged and set aside under the provi-
sions of Rule 3.06 of the Election Rules 70 16 86
ATTEST: /s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
WITNESS:
For Council #74, American
For Maine State Employees Federation of State, County
Association & Municipal Employees, For Teamsters Local
AFL-CIO Union #48 For State of Maine
/s/ John J. Finn /s/Charles W. Sherburne /s/Richard Peluso /s/ John J. Sears
S U P P L E M E N T A L C E R T I F I C A T I O N
I, Parker A. Denaco, Executive Director of the Maine Labor Relations Board for the State of
Maine, do hereby certify as a result of a bargaining agent election, the results of which
are noted hereon, above, conducted from June 8, 1977, to June 29, 1977, for the Operations,
Maintenance and Support Services bargaining unit of the State of Maine (that NO BARGAINING
AGENT was elected and a runoff election is required).
Dated at Augusta, Maine, this 12th day of July, 1977.
By: /s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
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The following is the election report and certification for the
P&T Unit election dated July 12, 1977:
Original Supplemental
ELECTION REPORT Tabulation Tabulation Total
June 30, 1977 July 12, 1977 TabulatIon
Members of the Unit and eligible to vote 3,171 3,171 3,171
Ballots cast 1,677 637 2,314
Ballots for the proposition that Maine State
Employees Association SHALL REPRESENT the
Professional & Technical Services bargaining 1,040 395 1,435
unit as their bargaining agent
Ballots for the proposition that Council #74,
American Federation of State, County & Munici-
pal Employees, AFL-CIO, SHALL REPRESENT the 423 182 605
Professional & Technical Services bargaining
unit as their bargaining agent
Ballots for the proposition of NO REPRESENTATION 71 36 107
Ballots with no alternative indicated 2 1 3
Ballots spoiled and not counted 0 1 1
Ballots challenged and set aside under the
provisions of Rule 3.06 of the Election 141 22 163
Rules
ATTEST: /s/ Parker A. Denaco_______________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
WITNESS:
For Council #74, American
For Maine State Employees Federation of State, County
Association & Municipal Employees, AFL-CIO For State of Maine
/s/John J. Finn /s/Kenneth A. Walo /s/John J. Sears
S U P P L E M E N T A L C E R T I F I C A T I O N
I, Parker A. Denaco, Executive Director of the Maine Labor Relations Board for the State
of Maine, do hereby certify as a result of a bargaining agent election, the results of
which are noted hereon, above, conducted from June 8, 1977, to June 29, 1977, for the
Professional and Technical Services bargaining unit of the State of Maine (that Maine
State Employees Association SHALL REPRESENT the aforesaid unit as the duly certified
bargaining agent).
Dated at Augusta, Maine, this 12th day of July, 1977.
By: /s/ Parker A. Denaco________________
Parker A. Denaco, Executive Director
Maine Labor Relations Board
9) On June 2, 1977, the Executive Director of the Board, respond-
ing to an inquiry from OSER, certified that was the only peti-
tioner for an election in the Law Enforcement Services bargain-
ing unit and that MSEA's showing of interest exceeded 53%.
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10) On June 9, 1977, the first day after the mailing of ballots in
the OMS Unit and P&T Unit elections, the State of Maine, through
OSER, voluntarily recognized MSEA as the bargaining agent for the Law
Enforcement Services bargaining unit. On or about June 9, 1977, OSER and
MSEA issued a joint news release stating that the State of Maine had
recognized MSEA as the bargaining agent for employees in the Law
Enforcement Services bargaining unit which was published in several
newspapers in the State of Maine during the time of the elections
in the OMS Unit and P&T Unit.
DECISION
The prohibited practice complaint filed by Charles Sherburne on July 6, 1977,
as amended on July 14, 1977, charged the State of Maine with disenfranchising
eligible voters and interfering with a free and fair election in violation of 26
M.R.S.A. 979-C(1)(A and B). The basis for the charge was the alleged tardiness
and inaccuracy in the list of eligible voters and the voluntary recognition of
MSEA as the bargaining agent for the Law Enforcement Services bargaining unit during
the election for a bargaining agent in the OMS Unit and the P&T Unit. The Objections
to the Election filed by Charles Sherburne on July 6, 1977, challenged the conduct
of the OMS Unit election on the following grounds:
1) The procedure employed by the Board effectively disenfranchised
enough voters to effect the outcome of the election because:
a) Ballots of voters who voted and placed their ballots
in the United States mail pursuant to Board procedure
and in a timely fashion were not counted by the Execu-
tive Director and/or the Board.
b) The Executive Director and/or the Board failed to as-
certain the accuracy of the voting list supplied by the
State to the Executive Director and/or the Board and said
list excludes approximately 50 eligible voters who are
members of AFSCME and who were employed by the State in
positions within the operation, support and maintenance
unit on December 29, 1976 and who remained on the State
payroll as of the date of the election and, upon informa-
tion and belief, said list is minimally inaccurate by 10
percent.
c) The Executive Director and/or the Board failed to count
authentic ballots.
2) The Executive Director and/or the Board applied rules which were
promulgated in violation of 26 M.R.S.A. 979-G(1) and 968(3).
The Objections to the Election filed by Charles Sherburne on July 14, 1977,
challenged the conduct of the OMS Unit election and the P&T Unit election on the
following grounds:
1) The procedure employed by the Board effectively disenfranchised
enough voters to effect the outcome of the election because:
a) Ballots of voters who voted and placed their ballots in
the United States mail pursuant to Board procedure and
in a timely fashion were not properly counted by the
Executive Director and/or the Board.
b) The Executive Director and/or the Board failed to ascer-
tain the accuracy of the voting lists supplied by the
State to the Executive Director and/or the Board and said
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list of the employees within the Operation, Maintenance
and Support Services unit exclude approximately 50 elig-
ible voters who are members of AFSCME and who were employed
by the State in positions within the Operation, Maintenance
and Support Services unit on December 29, 1976 and who re-
mained on the State payroll as of the date of the election
and, upon information and belief, both lists are minimally
inaccurate by 10 per cent.
c) The Executive Director and/or the Board failed to count au-
thentic ballots.
2) The Executive Director and/or the Board applied rules which were promul-
gated in violation of 26 M.R.S.A. 979-G(1) and 968(3).
3) The Executive Director and/or the Board arbitrarily decided to count
approximately 379 challenged ballots in the OMS unit, while failing to
count an additional 84 challenged ballots in the same unit.
4) The Executive Director and/or the Board counted challenged ballots re-
ceived by then, after 9:00 A.M. on June 29, 1977, the predetermined cut-
off date for the election.
5) The Executive Director and/or the Board failed to send out ballots to
eligible voters who, upon information and belief, the Executive Director
and/or the Board now know to be eligible voters who were not previously
contained on the voting list furnished by the State of Maine, said addi-
tional voters in combination with the challenged ballots being a suffic-
ient number to affect the outcome of the election.
The first issue is that of the tardiness of the voter eligibility list. As
noted in the Findings of Fact, the ballots were mailed from the Board on June 8,
1977. At the pre-election conference conducted on May 5, 1977, all the parties to
both elections agreed that the voter eligibility lists would be available on or be-
fore May 26, 1977. The Complainant agreed to a May 26, 1977, availability date and
did not object to the date until after the counting of the ballots. By agreeing to
the eligibility list availability date, Council 74 has waived any right to object to
the date, and by not raising the issue of an untimely voter eligibility list prior
to the election, Council 74 is estopped from raising the issue after the conducting
of the election.
The second issue is that of inaccuracies in the voter eligibility list. As
noted in the Findings of Fact, 71 of 1,961 names were omitted from the OMS Unit
voting list. Approximately 32 of the 1,961 names on the OMS Unit list had incorrect
addresses and approximately 41 of the 3,171 names on the P&T Unit list had incorrect
addresses. An error rate of 3.5% of omissions and 1.3 to l.6% of address inaccuracies
in the voter eligibility list is not substantial and should not be the basis for set-
ting aside an election unless it is clearly shown that the error was either intentional
or due to the gross negligence of the employer. The evidence does not support a find-
ing of either intentional error or gross negligence and is not sufficient to be a
violation of 26 M.R.S.A. 979-C or the basis for setting aside an election. Addition-
ally, the Board established a toll free call-in procedure for state employees to re-
quest a ballot. Prior to the deadline for employees to request a ballot, the partici-
pating labor organizations, OSER and the MLRB met to discuss means of correcting ad-
dress errors and the Complainant opposed any effort to correct address errors other
than by means of the previously agreed upon toll free call-in procedure.
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The third issue is that of the voluntary recognition by the State of Maine
of MSEA as the bargaining agent for the Law Enforcement bargaining unit during the
election in the OMS Unit and P&T Unit. The Complainant has failed to offer any
evidence that the voluntary recognition by the employer of one labor organization
in a bargaining unit has an adverse effect upon the competing organization in an-
other bargaining unit. It is equally as likely that voluntary recognition of one
organization in one bargaining unit could have a beneficial effect on the competing
organization in another bargaining unit. Additionally, the evidence proved that
the voluntary recognition was made in the normal course of business. It was not
timed to coincide with the other elections and was not intended to have an adverse
impact either way on other pending elections. The voluntary recognition was made
after factual inquiries to the Board to determine the adequacy of the showing of interest
and was intended to be consistent with and promote the purposes of the State Employees
Labor Relations Act. We conclude that the voluntary recognition does not violate 26
M.R.S.A. 979-C and is not sufficient to warrant setting aside an election.
The fourth issue is that some ballots were not properly counted by the Executive
Director or the Board. Having reviewed the testimony, pleadings and record, we find
no evidence to support the allegation that some ballots were not properly counted by
either the Executive Director or the Board, and we counted all ballots received in
accordance with the pre-election memorandum.
The fifth issue is that the Executive Director or the Board failed to ascertain
the accuracy of the voting list. Firstly, there is no affirmative obligation on the
Executive Director or the Board to ascertain the accuracy of the voting list. Prior
to an election, the labor organization should ascertain the accuracy of the list and
attempt to correct any errors. The State Employees Labor Relations Act and the Rules
and Procedures of the Maine Labor Relations Board provide a structure for resolving
disputes over the voting list, and the Executive Director and the Board followed those
procedures in this case. Secondly, two additional procedures were available in the
mail ballot process, including the meetings with parties to correct the list and the
toll free call-in procedure.
The sixth issue is the alleged failure to count authentic ballots. The Executive
Director counted all ballots received in accordance with the pre-election memorandum,
the Rules and Procedures of the Maine Labor Relations Board and the State Employees
Labor Relations Act and, therefore, the Board believes this allegation to be with-
out foundation.
The seventh issue is the application of rules and procedures allegedly improperly
promulgated by the Board. The evidence at the hearing indicated that Complainant be-
lieved the portion of Rule 3.05(c) concerning additional instructions or additional
identifying marks on a mail ballot envelope were improperly promulgated. The records
of the Board indicated that the language complained of was added to Rule 3.05(c) after
a public hearing held on September 18, 1975. The public was given notice of the hear-
ing through the newspapers and the Complainant was given actual notice and, in fact,
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attended the public hearing. Copies of the proposed revisions were available to the
public and a copy was mailed to all interested organizations, all in compliance with
the provisions in Title 26. Consequently, we find Council 74's allegations of im-
proper promulgation of rules is without merit.
The eighth issue is that of the Board arbitrarily counting challenged
ballots in the OMS Unit. The testimony on the challenges made during the July 12,
1977, counting for the OMS Unit was ambiguous but, even if we assumed that all OMS
ballots counted on July 12, 1977, were individually challenged, we overrule the
challenge since to do so would disenfranchise otherwise eligible state voters.
The ninth issue is that of counting ballots delivered to the Board after 9:00
a.m. on June 29, 1977. The Board counted all ballots received in accordance with the
pre-election memorandum. Ballots tabulated on July 12, 1977, were duly received by
the U.S. Postal Service on or before June 29, 1977, and merely were not counted on
the June 29-30, 1977, tabulation date.
The tenth issue was the Executive Director's or the Board's failure to send out
ballots to employees which the Board now knows to be eligible voters. As stated
above, the error is statistically insignificant and absent a showing more voters
were excluded from the list, or that such exclusions resulted from an intentional act
to disenfranchise voters or to influence the outcome of the election, this is not a
basis for setting aside the election. Also, as mentioned earlier, the Board provided
a toll free telephone line to remedy errors in the voter list.
ORDER
On the basis of the foregoing Findings of Fact and by virtue of and pursuant to
the powers granted to the Maine Labor Relations Board by the State Employees Labor
Relations Act, it is hereby ORDERED:
1) That the prohibited practice complaint filed by Charles Sherburne,
Executive Director, Council 74, American Federation of State, County
and Municipal Employees, AFL-CIO, on July 6, 1977, as amended on July
14, 1977, be DISMISSED.
2) That the Objections to the Elections filed by Charles Sherburne, Ex-
ecutive Director, Council 74, American Federation of State, County
and Municipal Employees, AFL-CIO, on July 6, 1977 and July 14, 1977,
be DISMISSED.
3) That the Certification of the Maine State Employees Association as the
bargaining agent for the Professional and Technical Services bargaining
unit issued on July 12, 1977, be AFFIRMED.
4) That the Certification that no bargaining agent was elected in the
Operations, Maintenance and Support Services Unit and a run-off
election was required issued on July 12, 1977, be AFFIRMED.
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5) That the Executive Director proceed forthwith with a run-off election
in the Operations, Maintenance and Support Services Unit as pro-
vided in the State Employees Labor Relations Act and Rule 3.09 of the
Rules and Procedures of the Maine Labor Relations Board.
Dated at Augusta, Maine this 31st day of October, 1977.
MAINE LABOR RELATIONS BOARD
/s/________________________________________
Walter E. Corey, Chairman
/s/________________________________________
Robert D. Curley, Employer Representative
/s/________________________________________
Michael Schoonjans, Employee Representative
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