STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 01-E-02
Issued: June 5, 2001
______________________________
)
In Re: )
) EXECUTIVE DIRECTOR'S
PETITION FOR DECERTIFICATION, ) DECISION
WINTHROP BUS DRIVERS )
______________________________)
PROCEDURAL HISTORY
On April 10, 2001, Jessica Tessier filed a Petition for
Decertification Election with the Maine Labor Relations Board
("Board"). The Petition related to the Winthrop Bus Drivers,
represented by the Winthrop Bus Drivers' Association/MEA/NEA
("Association"). By letter dated April 12, 2001, the Attorney
Examiner advised Ms. Tessier of certain insufficiencies in her
petition. She was advised that she could amend her petition no
later than April 27, 2001 (in which case the amendment would be
effective as if made on the original date of filing), or that she
could file a new petition. On April 27, 2001, Ms. Tessier filed
an Amended Petition for Decertification Election. The Board
served this petition upon Terry Despres, Superintendent of
Schools, and upon Joan Morin, MEA UniServ Director, by fax and by
regular mail on April 30, 2001. The parties were advised that
objections were required to be filed on or before May 7, 2001.
On May 7, 2001, the Board received a response from Ms. Morin for
the Association, in which she raised the following objections:
(1) the showing of interest was insufficient; (2) the petitioner
lacked standing to file the petition; and (3) the petitioner
failed to accurately identify the current bargaining agent on the
petition. The employer filed no objections.
As the Association's objections raised an issue regarding
the composition of the bargaining unit, the hearing examiner
requested that the employer verify the names of the employees in
the bargaining unit, in keeping with Chap. 11, 13(2) of the
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Board Rules. In response to this request, the employer submitted
two bus driver seniority lists, one dated March 22, 2001, and one
dated April 24, 2001 (Exhibit Nos. 1 and 2). The employer later
submitted the most recent seniority list, dated May 22, 2001
(Exhibit No. 3). On May 31, 2001, Ms. Morin and Mr. Despres
submitted stipulations of fact relating to the composition of the
bargaining unit (Exhibit No. 4).
JURISDICTION
The jurisdiction of the executive director or his designee
to decide the sufficiency of the petition, including the
sufficiency of the showing of interest, lies in 26 M.R.S.A.
967(2) and Chap. 11, 8, Chap. 11, 9, and Chap. 11, 13 of
the Board Rules.
DISCUSSION
Composition of Bargaining Unit
Before addressing the objections raised by the Association,
I will address the issue of the composition of the bus driver
bargaining unit. This is necessary for two reasons. First, a
petition for decertification must be accompanied by a showing of
interest from 30 percent of the employees in the existing
bargaining unit, pursuant to 26 M.R.S.A. 967(2) and Chap. 11,
7(11) of the Board Rules. It is therefore necessary to
determine the number of employees in the unit in order to
determine whether the showing of interest is sufficient. Second,
a decertification election in this matter cannot be conducted
properly without a determination of the correct composition of
the bargaining unit, as only employees who are members of the
bargaining unit may vote.[fn]1
____________________
1 Chap. 11, 44 of the Board Rules provides that the voter list
must contain the names and addresses of the employees in the unit who
are employed at the time of the submission of the list and who are
otherwise eligible to vote under Rule 43 (emphasis supplied). That
Rule requires that employees eligible to vote are those who were
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The Municipal Public Employees Labor Relations Act
("MPELRL") favors agreements between the parties as to the
composition of bargaining units. 26 M.R.S.A. 966(1) provides
in part:
In the event of a dispute between the public employer
and an employee or employees as to the appropriateness
of a unit for purposes of collective bargaining or
between the public employer and an employee or
employees as to whether a supervisory or other position
is included in the bargaining unit, the executive
director or his designee shall make the determination,
except that anyone excepted from the definition of
public employee under section 962 may not be included
in a bargaining unit.
In this case, the parties filed an Agreement on Appropriate
Bargaining Unit on April 24, 1990, that provided that the
bargaining unit consisted of bus drivers, excluding substitute
bus drivers. The Notice of Bargaining Agent Election issued on
May 18, 1990, described the bargaining unit in this same way. As
a result of the election, conducted May 31, 1990, the Winthrop
Support Staff Association/MTA/NEA was elected as the exclusive
collective bargaining agent. Apparently, the agent is commonly
referred to as the "Winthrop Bus Drivers' Association." The
Association remains the exclusive collective bargaining agent at
this time.
Article I, Section A of the most recent collective
bargaining agreement (which expires on June 30, 2001) recognizes
the Association as the sole and exclusive bargaining
representative for
the entire group of bus drivers employed by the
Winthrop Board of Education who have been employed six
(6) months or more, excluding all other substitute bus
drivers and excluding all other employees of the
____________________
employed on the last pay date prior to the filing of the petition, who
are employed on the date of the election, and who meet the applicable
requirements defining covered employees (i.e., employees who are
"public employees," as defined).
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Winthrop Board of Education.
Article XV of the collective bargaining agreement defines various
types of bus drivers:
F. "Regular Driver" is one who drives two (2) or more
assigned runs on a daily basis.
G. "Part-Time Driver" is one who drives less than two
(2) runs on a daily basis and also serves as a
substitute driver.
H. "Substitute Driver" may temporarily fill-in for a
regular or part-time driver and may drive cocurricular
trips.
The term "temporary" driver is also used in the collective
bargaining agreement, although this term is not specifically
defined. For instance, seniority credit is granted for a period
of continuous temporary employment for employees who transfer
from a temporary to a permanent position, under Article IV,
Section A(1). New regular drivers who have transferred from a
temporary to a regular position receive credit for the period of
continuous temporary employment for purposes of determining
wages, under Article VI, Section 2.
Which of these types of drivers - regular, part-time,
substitute, and temporary - are in the bargaining unit? The
regular drivers drive two or more runs on a daily basis. They
are clearly not substitutes, and so fit the description of
employees in the bargaining unit ("the entire group of bus
drivers employed . . . excluding all other substitute bus
drivers . . ."). The part-time drivers drive less than two runs
on a daily basis but are regularly-scheduled, according to the
stipulations of the parties. The part-time drivers may also
serve as substitute drivers, which suggests that their status is
different from the substitute drivers. The part-time drivers are
treated like the regular drivers in several provisions of the
collective bargaining agreement. For instance, substitute
drivers fill in for regular or part-time drivers. Seniority is
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based on employment from date of hire as a regular and/or part-
time bus driver (Article IV, Section A(1)). New regular and
part-time drivers serve a probationary period at base rate
(Article VI, Section (2)). These facts establish that the part-
time drivers are similar to the regular drivers; the part-time
drivers are not substitutes, and therefore also fit the
description of employees in the bargaining unit. The substitute
drivers are excluded from the bargaining unit as defined both by
the Agreement on Appropriate Bargaining unit and by the
recognition clause of the collective bargaining agreement. While
the term temporary drivers is not specifically defined in the
collective bargaining agreement, the parties have stipulated that
temporary drivers fill in for regular drivers and have no
expectation of continuing employment. Therefore, the temporary
drivers are more like substitute drivers than they are like
regular or part-time drivers, and they are also excluded from the
bargaining unit. In summary, the regular and the part-time
drivers are included in the bargaining unit; the substitute and
temporary drivers are not included in the bargaining unit.
This conclusion is also in keeping with the definition of
"public employee" in the MPELRL. Pursuant to 26 M.R.S.A.
966(1), anyone excepted from the definition of public employee
may not be included in a bargaining unit. 26 M.R.S.A.
962(6)(G) excludes from the definition of public employee any
person who is a temporary, seasonal or on-call employee. In
order to determine whether an employee is temporary, the hearing
examiner must determine, " . . . in the totality of the
circumstances, whether the employee involved may be said to have
had a reasonable expectation of continued employment." Council
93, AFSCME v. Town of Sanford, No. 90-07, slip op. at 14
(Me.L.R.B. June 15, 1990). The point of the exclusion is to
exclude those employees who work "irregularly" or "sporadically,"
and therefore do not share a community of interest with the
permanent, regularly-scheduled employees in the unit. Town of
Berwick and Teamsters Local Union No. 48, No. 80-A-05, slip op.
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at 3 (Me.L.R.B. July 24, 1980). The parties have stipulated that
the part-time drivers are regularly-scheduled, not temporary, on-
call or seasonal employees. The parties have further stipulated
that the substitute drivers work on a sporadic or on-call basis,
and that the temporary drivers have no expectation of continuing
employment. These facts confirm that neither the part-time nor
the temporary drivers are public employees, and should therefore
be excluded from the bargaining unit.
I will now turn to the objections raised by the Association,
in turn, below.
Showing of interest
The showing of interest forms provided with the Original
Petition and retained by the Board consisted of original separate
documents, with a separate document being signed by each
individual. Each form contained the printed named of the
employee, the signature of the employee, a handwritten indication
of the date the employee's signature was obtained, and a
statement that the person signing no longer wished to be
represented by the Winthrop Bus Drivers' Association. Therefore,
in form, the showing of interest was acceptable under Chap. 11,
8(1) of the Board Rules.
In addition to the form of the showing, the director must
also verify the quantity of the showing. 26 M.R.S.A. 967(2)
and Chap. 11, 7(11) require that a petition for decertification
be accompanied by a showing of interest from 30 percent of the
employees in the existing bargaining unit. As described above,
the bargaining unit here consists of all bus drivers employed by
the Winthrop School Committee six months or more, but not
including substitute bus drivers. In the letter of objection,
the Association submitted a list of nine members of the
bargaining unit as of April 27, 2001. By way of verifying the
members of the bargaining unit, the employer has submitted three
seniority lists, each of different dates (Exhibits 1 - 3).
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Logically, the showing of interest must be from employees who
were members of the bargaining unit as of the date that the
petition was filed. In this case, the Petitioner filed the
petition on April 10, 2001, and amended the petition within the
15 days allowed for permitted amendments. Chap. 11, 9(3) of
the Board Rules provides that permitted amendments are effective
as if made on the date the petition was filed. Therefore, the
petition must be treated as filed on April 10, 2001. On the
seniority list effective as of this date (dated March 22, 2001),
drivers are designated as "BD" (also known as regular), "PT/SUB"
(part-time/substitute), or TRIP/SUB (trip/substitute). Which of
the "PT/SUB" drivers are part-time drivers (and thus included in
the bargaining unit) and which of the "PT/SUB" drivers are only
substitute drivers (and thus not included in the bargaining unit)
cannot be discerned from the seniority list itself.[fn]2 However,
this distinction is not necessary to find that the showing of
interest is sufficient. The showing of interest is sufficient if
only the "BD" drivers from the March 22 seniority list are
considered members of the bargaining unit. The showing of
interest is also sufficient if both the "BD" drivers and the
"PT/SUB" drivers from the March 22 seniority list are considered
members of the bargaining unit. In either scenario, 30 percent
of the employees eligible to be included in the unit signed
____________________
2 On the most recent seniority list (dated May 22, 2001), the
terms "PT/SUB" and "TRIP/SUB" have been eliminated and only the term
"SUB" is used. Comparing the March 22 list with this most recent
list, two of the "PT/SUB" drivers are now designated as "SUB" drivers,
one of the "PT/SUB" drivers is now designated as a "TEMP" driver, and
one of the "PT/SUB" drivers is now designated as a "REG" driver. All
of the "TRIP/SUB" drivers from the March 22 list are now designated as
"SUB" drivers. It can be assumed from this that the "TRIP/SUB"
drivers are all substitute drivers, and thus not included in the
bargaining unit. The only matter that is unclear is which of the
"PT/SUB" drivers should be considered in the bargaining unit.
In its objections, the Association stated that there were nine
members of the bargaining unit - all of the "BD" drivers from the
April 24, 2001, seniority list. This list was created after the
effective date of the filing of this petition. However, even if I
considered these nine employees as the only bargaining unit members,
the showing of interest would be sufficient.
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showing of interest forms supporting the petition.
I find that the showing of interest is sufficient in terms
of both form and quantity.
Standing of the Petitioner
The Association has challenged whether Ms. Tessier had
standing to file this petition, on the basis that she was not a
member of the bargaining unit at the time she filed the petition.
The seniority lists submitted by the employer indicated that
Ms. Tessier was a member of the bargaining unit as of the date
the petition was filed, although her status has since changed.[fn]3
If she was a member of the bargaining unit at the time she filed
the petition, there is no question that she had standing to file
the petition. But even if Ms Tessier was not a member of the
bargaining unit, as the Association asserts, she would still have
had standing to file the petition under the facts as presented
here.
The MPELRL does not identify, with specificity, the
individuals or entities who have standing to file a
decertification election petition. 26 M.R.S.A. 967(2)
provides, in part:
2. Elections. The executive director of the board, or
a 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
____________________
3 Ms. Tessier was listed as a "BD" or regular driver on the
March 22 seniority list and therefore was a regular driver as of the
date that the petition was considered to be filed (April 10, 2001).
Therefore, she was a member of the bargaining unit as of the date of
the filing of the petition. On the two subsequent lists, she has been
designated as a "TRIP/SUB" or "SUB" driver, respectively, and
therefore not a member of the bargaining unit.
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in the bargaining unit. . . .
Whenever 30% of the employees in a certified bargaining
unit petition for a bargaining agent to be decertified,
the procedures for conducting an election on the
question shall be the same as for representation as
bargaining agent hereinbefore set forth. . . .
(Emphasis added)
The key requirement for the filing of a sufficient petition under
the MPELRL is that the showing of interest in support of the
petition be signed by the requisite number of members of the
bargaining unit. This is in keeping with the general purpose of
the law, which is to recognize the right of public employees to
join labor organizations of their own choosing. The "right to
choose" must naturally include the right to choose no
representation, or to reject present representation.
The Board Rules at Chap. 11, 5(3) describe the specific
limitations on who may file decertification petitions as follows:
3. Decertification Election. A decertification
election petition or a petition to decertify the
incumbent bargaining agent and elect a new bargaining
agent may be filed by an employee, a group of employees
or any individual or employee organization acting on
their behalf. Neither the employer nor the incumbent
bargaining agent may file a decertification petition or
cause a decertification petition to be filed.
(Emphasis added).
As long as an individual is acting on behalf of an employee or
group of employees, that individual has standing to file a
petition for decertification election.
The fact that the Petitioner has obtained showing of
interest forms from a sufficient number of bargaining unit
employees establishes that she is acting on their behalf in
filing the present petition. It is only through the filing of a
decertification petition that the desires of the employees
expressed in the forms can be put to the test through election.
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The Association's sole argument in their objection on this issue
was that the Petitioner lacked standing because she was not an
employee. The Association has not alleged, nor provided any
evidence, that the Petitioner was not acting on behalf of the
employees who provided her with the showing of interest forms.
Further, it would be difficult to test the Petitioner's status as
an individual acting on behalf of employees, without jeopardizing
the confidentiality of the employees who signed the showing of
interest forms.
For these reasons, I find that the Petitioner had standing
to file the Original and the Amended Petition for Decertification
Election, as she was either an employee, or acting on behalf of
the employees who provided her with the showing of interest
forms, in keeping with Chap. 11, 5(3) of the Board Rules.
Failure to correctly identify bargaining agent
In the Amended Petition, the Petitioner crossed out the
section titled "Petitioner's Representative for Correspondence
(if different)" and re-named the section "Local Rep. Of
Association." She then completed the section with the name and
address of Ms. Morin, an employee of the MEA. In the section
titled "Incumbent Collective Bargaining Agent," the Petitioner
supplied the name and address of the Association President, a
Winthrop bus driver.
Under Chap. 11, 9 of the Board Rules, the executive
director must review a petition for "sufficiency." If a petition
is "complete," the director must transmit an official copy of the
petition to the respondent within 24 hours, thereby placing the
interested parties on first notice of the proceeding. The
primary purpose of any petition before the Board is to request
the Board to take whatever action is the subject of the petition.
Another obvious function of any petition is to place the
interested parties on notice of the proceeding, and to allow them
to raise objections. In the case of a decertification petition,
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for instance, the incumbent bargaining agent may wish to contact
its members in the bargaining unit and begin a campaign to thwart
the drive to decertify. The Board has found that certain errors
in a petition may diminish the quality of notice to the affected
parties. In Keith Emery v. Teamsters Union Local 340, No. 98-EA-
02 (Interim Order on Election Appeal), (Me.L.R.B. Mar. 23, 1998),
the Board found that a decertification petition was improperly
filed because the copy served upon the incumbent bargaining agent
was not notarized. The Board observed that an incumbent
bargaining agent should not be expected to act on a petition that
is not notarized. Slip op. at 3.
Here, the Petitioner's primary mistake was in identifying
the local Association President as the incumbent collective
bargaining agent. The name and identity of the incumbent
collective bargaining agent did appear on the petition, simply
under the misnomer "Local Rep. of Association." This was not a
significant defect in the petition. It is understandable, for
instance, that an employee reviewing the collective bargaining
agreement for the Winthrop Bus Drivers would not necessarily
understand the connection between the "Bus Drivers' Association"
and "MEA/NEA." The agreement is between the bus drivers and the
Winthrop Board of Education; it is signed by the Association
President, who is also identified as the Chief Negotiator.
Neither the MEA nor the NEA are mentioned anywhere in the
agreement. Documents in the Board files made clear that the
incumbent bargaining agent was the Winthrop Bus Drivers'
Association/MEA/NEA and the Board was able to properly serve the
petition upon Ms. Morin. Notice was also provided to the local
Association President, although the Rules did not specifically
require this. Therefore, the defect in the Petition did not
diminish its effectiveness in placing the Association on notice
of the matter and Ms. Morin did, in fact, promptly act upon the
Petition.
Further, the "window period" during which a decertification
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petition may be filed has now closed. See 26 M.R.S.A. 967(2).
It would be unjust to dismiss a petition for such a minor defect
when the Petitioner can no longer file another petition (at least
so long as the current collective bargaining agreement has not
expired). Therefore, I do not believe that the error in the
petition rose to the type of significant error discussed in Keith
Emery, and the Amended Petition should not be dismissed on this
ground.
CONCLUSION
The objections raised by the Association to the Amended
Petition for Decertification Election (Original Petition filed
April 10, 2001; Amended Petition filed April 27, 2001), are
dismissed and the Executive Director will proceed to schedule a
decertification election in this matter for the employees
identified as members of the bargaining unit consistent with this
decision.
Dated at Augusta, Maine, this 5th day of June, 2001.
MAINE LABOR RELATIONS BOARD
/s/______________________________
Dyan M. Dyttmer
Designee of the Executive Director
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. 968(4), to appeal this decision to the Maine Labor
Relations Board. 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 Chap. 10, 7, Chap. 11, 9, and Chap. 11, 30 of the Board
Rules for requirements.
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Pos DOH L NAME F NAME Yrs Win
BD 10/20/89 Therrien Lisa 10.67
3/11/91 Austin Robert 9.25
5/8/94 Manter David 6.08
8/30/96 Main Jack 4
10/22/96 Lane Carlton 3.67
10/19/98 Richards Gina 1.67
4/26/99 Hannibal Linda 1.17
11/8/99 Charette Kevin .58
2/28/00 Tessier Jessica .33
8/28/00 Titus MaryLou 0
PT/SUB 4/16/99 Dick David 1.17
8/31/99 Maxim Sonny 9.75 9/2/87
3/13/00 Raymond Michelle .25
11/16/00 Kjlabor Deborah 0
TR DIR Raymond David
TRIP/SUB 9/1/73 Jones Verdell N/A
9/1/97 Steele Gerald N/A
9/30/97 McGowan Ronald N/A
9/26/00 Mangin Jordan N/A
Thursday, March 22, 2001
Exhibit 1
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Pos DOH L NAME F NAME Yrs Win
BD 10/20/89 Therrien Lisa 10.67
3/11/91 Austin Robert 9.25
5/8/94 Manter David 6.08
8/30/96 Main Jack 4
10/22/96 Lane Carlton 3.67
10/19/98 Richards Gina 1.67
4/26/99 Hannibal Linda 1.17
11/8/99 Charette Kevin .58
8/28/00 Titus MaryLou 0
PT/SUB 4/16/99 Dick David 1.17
8/31/99 Maxim Sonny 9.75 9/2/87
11/16/00 Kjlabor Deborah 0
TEMP 3/13/00 Raymond Michelle .25
TR DIR Raymond David
TRIP/SUB 9/1/73 Jones Verdell N/A
9/1/97 Steele Gerald N/A
9/30/97 McGowan Ronald N/A
2/28/00 Tessier Jessica .33
9/26/00 Mangin Jordan N/A
April 24, 2001
Exhibit 2
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Pos DOH L NAME F NAME Yrs Win
BD 10/20/89 Therrien Lisa 10.67
3/11/91 Austin Robert 9.25
5/8/94 Manter David 6.08
8/30/96 Main Jack 4
10/22/96 Lane Carlton 3.67
10/19/98 Richards Gina 1.67
4/26/99 Hannibal Linda 1.17
11/8/99 Charette Kevin .58
8/28/00 Titus MaryLou 0
11/16/00 Kjlabor Deborah 0
SUB 9/1/73 Jones Verdell N/A
9/1/97 Steele Gerald N/A
9/30/97 McGowan Ronald N/A
4/16/99 Dick David 1.17
8/31/99 Maxim Sonny 9.75 9/2/87
2/28/00 Tessier Jessica N/A
9/26/00 Mangin Jordan N/A
TEMP 3/13/00 Raymond Michelle .25
TR DIR Raymond David
Tuesday, May 22, 2001
Exhibit 3
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STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 01-E-02
_________________________________
)
In Re: )
) STIPULATIONS OF FACT
PETITION FOR DECERTIFICATION, )
WINTHROP BUS DRIVERS )
_________________________________)
1. Article I of the collective bargaining agreement between the Winthrop Board of Education
and the Winthrop School Bus Drivers provides, in part, that the Board recognizes the Winthrop
Bus Drivers'Association as the sole and exclusive bargaining representative for "... [T]he entire
group of bus drivers employed by the Winthrop Board of Education who have been employed six
(6) months or more, excluding all other substitute bus drivers and excluding all other employees
of the Winthrop Board of Education."
2. On the most recent bus driver seniority list (May 22, 2001), all drivers are designated as
"Regular," "Substitute" or "Temporary."
3. A "Regular Driver" is one who drives two(2) or more assigned runs on a daily basis.
4. A "Part-Time Driver" is one who drives less than two (2) runs on a daily basis, but is still a
regularly-scheduled driver (i.e., one who is not a temporary, on-call or seasonal employee); "Part-
Time Drivers" also serve as substitute drivers. Part-time drivers are designated as "Regular" on
the seniority list.
5. A "Substitute Driver" is one who fills in for a regular or part-time driver on a sporadic or on-
call basis; they may also drive co-curricular trips as requested.
6. A "Temporary Driver" fills-in for a regular driver for a period when that regular driver is not
working (such as on a leave of absence). However, the regular driver retains the right to return to
the position and the temporary driver has no expectation of continuing employment.
7. Seniority lists must be maintained for all employees covered by the collective bargaining
agreement, even for those employees (like substitute drivers) who are not part of the recognized
bargaining unit, as an equitable means of assigning extra runs.
8. All time of continuous employment, as either a regular or part-time bus driver, is used in
calculating years for the seniority list.
9. Rights of the collective bargaining agreement based on seniority (such as lay-off and recall)
apply only to regular and part-time bus drivers.
Dated: 5/23/01______________________ Dated: 5/23/01______________________
By: /s/_____________________________ By: /s/____________________________
Joan Morin Terry Despres
UniServ Director Superintendent of Schools
Maine Education Association Winthrop School Department
35 Community Drive 8 Summer Street
Augusta, ME 04330-9487 Winthrop, ME 04364
Fax: 623-2129 Fax: 377-3915
Exhibit 4
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