Maine State Employees Association v. City of Lewiston, No. 83-14, 5 NPER 20-14016 (Feb. 23, 1983); rev'd sub nom. Council 74, AFSCME v. Maine Labor Relations Board, Maine State Employees Association, City of Lewiston, and Lewiston School Department, No. CV-83-114 (Me. Super. Ct., Ken. Cty., June 15, 1983); Board aff'd sub nom., Council 74, AFSCME v. Maine State Employees Association, 476 A.2d 699 (Me. 1984) STATE OF MAINE SUPERIOR COURT KENNEBEC, ss. CIVIL ACTION Docket No. CV-83-114 COUNCIL 74, AMERICAN FEDERATION ) OF STATE, COUNTY and MUNICIPAL ) EMPLOYEES, ) ) Plaintiff ) vs. ) DECISION and ORDER ) MAINE LABOR RELATIONS BOARD, ) MAINE STATE EMPLOYEES ASSOCIATION, ) CITY OF LEWISTON and ) LEWISTON SCHOOL DEPARTMENT, ) ) Defendants ) This is an appeal, pursuant to 26 M.R.S.A. 968(5)(F) and M.R. Civ. P. 80B from a decision of the Maine Labor Relations Board (Board). The Board held that the City of Lewiston and the Lewiston School Department (City) violated 26 M.R.S.A. 964(1)(A) by including the names of ineligible employees in voting lists. The Board accordingly set aside the results of a November 22, 1982 decertification election and ordered that another election be held. STATEMENT OF FACTS Since 1974, Council 74, American Federation of State, County and Municipal Employees (AFSCME) has been the duly certified bargaining agent for the Lewiston General Government Employee's Bargaining Unit which is composed of employees of the City of Lewiston and the Lewiston School Department. On October 6, 1982, the Maine State Employees Association (MSEA) petitioned the Board pursuant to 26 M.R.S.A. 967(2) for an election to decertify AFSCME - 1 - and certify MSEA as representative for the Lewiston Bargaining Unit. In a letter dated October 20, 1982, the Board scheduled the election for November 22, 1982. The letter informed the City that it was required, pursuant to Rule 3.02(B) of the Board Election Rules, to furnish a list of the names and addresses of employees in the bargaining unit so that a list of eligible employees could be prepared. Under Rule 3.02(B) employees on the payroll on the petition date (October 6, 1982) who remained on the payroll on the election date (November 22, 1982) and who are "public employees" as defined by 26 M.R.S.A. 962(6) are eligible to vote. Section 962(6)(F) excludes from the definition of "public employee" any employee "who has been employed less than 6 months." On October 28 and November 1, 1982, the City forwarded lists containing the names and addresses of those employees who purportedly were members of the bargaining unit. Included in the lists were the names of 10 probationary employees who were not "public employees" because they had not been employed by the City for at least 6 months, and who therefore were not eligible to vote. AFSCME was aware that the names of some ineligible workers were included in the list, but did not reveal this fact to any other party. The record does not disclose whether MSEA knew that some probationary workers were on the list. One hundred twenty-one employees voted in the November 22 election, with 62 votes for AFSCME, 53 for MSEA, 3 in favor of no -2- representative and 3 challenged. One probationary employee was challenged by AFSCME. Seven ineligible employees voted in the election and were not challenged by either party. Since AFSCME received a majority of the votes cast, the Board certified that AFSCME had been elected the bargaining agent. On November 29, 1982, MSEA filed an unfair labor practice complaint against the City and AFSCME alleging, inter alia, that the employer had committed an unfair labor practice by submitting voter eligibility lists to the Board which contained the names of probationary employees who were not eligible to vote in the election.[fn]1 The Board conducted a hearing on February 9, 1982. In a decision issued on February 23, 1983, the Board found that the votes cast by the seven ineligible voters may have affected the outcome of the election. The Board held that by including a sufficient number of non-bargaining unit employees on the voting lists to affect the outcome of the election, the City has interfered with the employee's rights to a fair election in violation of 26 M.R.S.A. 964(1)(A).[fn]2 The Board set aside the results of the November 22 election and ordered that a new election be held. The Board held _______________ 1 The complaint also contained charges that AFSCME had impermissibly interfered with the laboratory conditions of the election in violation of 26 M.R.S.A. 964(2)(A). 2 The Board did not reach the issues raised by M.S.E.A.'s claim that AFSCME had violated Section 964(2)(A). -3- that employees who were probationary employees at the time of the November 22 election would be eligible to vote if they had acquired 6 months employment by the time of the new election.[fn]3 ISSUES PRESENTED I. Did the Board properly consider MSEA's post election challenges to the eligibility of voters. II. Did the Board properly direct that employees who had been probationary employees at the time of the first election be permitted to vote in the second election. DISCUSSION In this appeal, AFSCME does not challenge the Board's findings that ineligible voters were included on the voting lists or that inclusion of these voters may have affected the result of the election. AFSCME contends that the Board acted improperly in allowing MSEA to challenge the eligibility of voters following the election. In N.L.R.B. v. A. J. Tower Co., 329 U.S. 324 (1946), the United States Supreme Court set out the general rule regarding post election voter challenges. The Court affirmed the National Labor Relation Board's policy of refusing to allow post election challenges ______________ 3 MSEA won the second election held on March 23, 1983 by a vote of 62 to 53. -4- to the eligibility of voters. The Court stated: All challenges as to registrants must be made during the intervening period or at the polls. Thereafter it is too late. The fact that cutting off the right to challenge conceivably may result in the counting of some ineligible votes is thought to be far outweighed by the dangers attendant upon the allowance of indiscriminate challenges after the election. To permit such challenges, it is said, would invade the secrecy of the ballot, destroy the finality of the election result, invite unwarranted and dilatory claims by defeated candidates and "keep perpetually before the courts the same excitements, strifes, and animosities which characterize the hustings, and which ought, for the peace of the community, and the safety and stability of our institutions, to terminate with the close of the polls." Cooley Constitutional Limitations (8th Ed., 1927), p. 1416. Id at 331-2. The Court held that the rule that once a ballot has been cast without challenge and its identity has been lost, its validity cannot be challenged is fair and efficacious and universally recognized as consistent with democratic process. Id at 332. "It gives a desirable and necessary finality to elections, yet affords all interested parties a reasonable period in which to challenge the eligibility of any voter." Id at 332-3. The rule announced in Tower has been followed by both the NLRB and state courts. See, NLRB v. Paper Art Co., 430 F.2d 82 (7th Cir. 1970): Michigan State University Employees Assn. v. Michigan State University, 1 P.B.C. 10,040 (Mich. Ct. of App. 1973). The Maine Labor Relation Board has followed the Tower rule in its decisions. -5- There is, however, an exception to the Tower rule to "where the Board's agents or the parties benefiting from the Board's refusal to entertain the [challenge to the voter's eligibility] know of the voter's ineligibility and suppress the facts." (footnote omitted). Tower, supra 329 U.S. at 333. See Matter of Wayne Hale, 62 NLRB 1393 (1945); Matter of Beggs & Cobb, 62 NLRB 193 (1945). See also, N.L.R.B. v. Corral Sportswear, 383 F.2d 961, 965 (10th Cir. 1967), cert. denied 390 U.S. 995 (1968); Ponce Television Corp., 192 N.L.R.B. 115, 116, n. 9 (1971). The Board urges that this exception is applicable to the case at bar. For the above stated exception to the Tower rule to apply, there must be a finding that a party knew that ineligible employees were included on the voting lists, and that the party suppressed this information. The Board found that AFSCME knew that the names of ineligible employees were on the voting lists, and that AFSCME did not make this information available to the other parties. However, to find that the information concerning ineligible voters was suppressed more is necessary than simply a showing of knowledge and failure to disclose; there must be a duty to disclose before suppression may be found. Chicora Fertilizer Co. v. Dunan, 91 Md. 144, 46 A. 347, 351 (1900); Murray v. Brotherhood of American Yeomen, 180 Iowa 626, 163 N.W. 421, 428 (1917). Cf. Eaton v. Sontag, 387 A.2d 33, 38 (Me. 1978) (not fraud for one party to say nothing respecting any particular aspect of property for sale where no confidential or fiduciary relationship exists). -6- Neither 26 M.R.S.A. 967, which provides for the election of bargaining representatives, nor the Board Election Rules, 12-180 CMR ch.3, impose a duty on either the employer or the union to challenge the eligibility of voters. Although the employer is required to provide a list of employees (Rule 3.02), this list is not intended to be a final list of all eligible voters. The challenge procedure provides a mechanism resolving claims about eligibilty. Rule 3.06 states that "any voter may be challenged for cause," but does not require a party who knows that a voter is ineligible to assert a challenge. Rule 3.06 also permits a party to withdraw a challenge at any time. The provisions regarding challenges to voter eligibility indicate that there is no duty to assert a challenge or disclose information regarding voter eligibility The rules seem to require each party to the election to review the eligibility of voters. The burden of checking the accuracy of the list rests with each participating union. Kennecott Copper Corp. Ray Mines Div., 122 NLRB 370 (1958) and one union is not required to check the eligibility list for an opposing union. Furthermore, there is no suppression where the actions of one party do not inhibit an opposing party from obtaining information. See U.S. v. Mandel, 415 F.Supp. 1079, 1085 (D.C. Md. 1976) (no suppression where defendant's inability to obtain favorable evidence is not a consequence of any government action). The record does not indicate that AFSCME took any actions which prevented MSEA from independently determining the qualifications of voters. Prior to the election MSEA could have obtained information -7- on the probationary status of employees simply by requesting this information from the city. The Court finds that AFSCME did not breach any duty by failing to challenge voters or inform the Board or the other parties to the election that ineligible voters were included on the voting lists. The Court also finds that there is no support in the record for a finding that AFSCME took any action which prevented MSEA from determining whether ineligible voters were included on the lists. Accordingly, the Court holds that AFSCME did not suppress facts concerning the inclusion of ineligible voters and there is no factual basis for application of the exception to the Tower rule permitting post election challenges where a party has suppressed facts concerning voter ineligibility. Therefore, the Court holds that the Maine Labor Relations Board decision to permit MSEA's post election challenge to the eligibility of voters is incorrect as a matter of law.[fn]4 In its prohibited practices complaint, MSEA alleged that AFSCME had violated 26 M.R.S.A. 964(2)(A) by making misleading and coercive statements to employees during the election campaign. The Board did not reach this issue. Therefore, this case must be _______________ 4 In view of its holding that it was improper for the Board to entertain MSEA's post election challenge to voter eligibility, the Court does not reach the issues raised by the Board's decision to permit workers who were on probation at the time of the first election to vote in the second election. -8- remanded to the Board for findings on the issue of improper campaign tactics. Upon the foregoing, it is hereby ORDERED that: the appeal is SUSTAINED; the decision of the Maine Labor Relations Board is REVERSED; this matter is REMANDED to the Maine Labor Relations Board for further proceedings consistent with this decision. Dated: June 15, 1983 ______________________________________ Louis Scolnik Justice, Superior Court