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 [-1-] _________________________________________________________________ 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 -2- _________________________________________________________________ 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). -3- _________________________________________________________________ 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 -4- _________________________________________________________________ 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. -5- _________________________________________________________________ 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). -6- 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. -7- _________________________________________________________________ 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. -8- _________________________________________________________________ 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. -9- _________________________________________________________________ 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, -10- _________________________________________________________________ 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 -11- _________________________________________________________________ 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. -12- _________________________________________________________________ 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 _________________________________________________________________ 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 _________________________________________________________________ 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 _________________________________________________________________ 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 _________________________________________________________________