Case No. 07-E-01
Issued: February 12, 2007

In Re:





     On November 8, 2006, Ms. Brenda Calderwood (Petitioner), a
representative of the MSAD #5 Pupil Transportation Association
(Association), filed a Petition for Decertification/Bargaining
Agent Election with the Maine Labor Relations Board (Board).  
The Petition sought to decertify the incumbent collective
bargaining agent for the MSAD #5 bus drivers' bargaining unit,
Teamsters Union Local 340 (Teamsters) and to certify the
Association as the collective bargaining agent.  The Petition
described the bargaining unit as all employees of the MSAD #5
Board of Directors who have completed six months of continuous
employment in MSAD #5 in the position of bus driver; the
Petitioner stated that there were eight full-time bus drivers in
the unit.  The Petition was duly served upon Mr. Carl Guignard,
Trustee and Business Agent for the Teamsters, and upon
Superintendent Alan Pfeiffer for the MSAD #5 Board of Directors
(MSAD #5 or Employer).  No response or objection was filed to the
Petition, and the Board issued an election scheduling letter and
notice on November 17, 2006.  This election scheduling letter
identified the following dates relevant to the election:  the
Employer was required to submit the list of eligible voters by
November 22, 2006; disputes with the eligible voter list were
required to be submitted by November 29, 2006; the ballots were 

[end of page 1]

to be mailed on December 7, 2006; and the ballots were to be
counted on December 21, 2006.
     The Board received the voter list from the Employer on
November 20, 2006; it was entitled "Bus Drivers Seniority List
2006-2007" and contained the names of ten employees, including
the names of the two employees who are the subject of the voter
eligibility challenge to be resolved in this proceeding, Herman
Thayer and Barbara Witham.  On November 28, 2006, the Petitioner
advised in writing that she was disputing the placement of    
Mr. Thayer and Ms. Witham on the eligible voter list.  In keeping
with the election scheduling letter, a telephone conference call
was conducted by the hearing examiner on November 30, 2006, in
order to attempt to resolve the challenge.  Participating in the
conference was Superintendent Pfeiffer, the Petitioner, and the
Employer's business manager.  Mr. Guignard was advised about the
conference and contacted in order to participate, but was not
available to participate.  As the result of the conference, the
hearing examiner made the tentative determination that Ms. Witham
was an eligible voter and should be sent a ballot and that    
Mr. Thayer was not an eligible voter and should not be sent a
ballot.  This tentative determination was summarized in a letter
sent to the parties on November 30, 2006; the parties were
advised in the letter that any voter could be challenged in
keeping with the Board Rules.[fn]1  
     On December 7, 2006, the ballots were mailed to nine
employees (all employees on the original list with the exception
of Mr. Thayer).  On December 13, 2006, Mr. Thayer contacted the
Board and asked that a ballot be sent to him.  In keeping with 

     [fn] 1 This tentative determination was made only to initially
define  who should be sent a ballot; it was not binding nor does it
mandate any outcome here.  The parties continued to be free to
challenge any voter for cause and, if the challenged ballots were
sufficient in number to affect the election result--as happened here--
the executive director must resolve the challenge pursuant to Chapter
11,  50 of the Board Rules.

[end of page 2]

Board practice, a ballot was sent to him which was to be con-
sidered a "challenged" ballot if returned.  Mr. Thayer returned
his ballot and it was marked as challenged.  On December 15,
2006, Mr. Guignard advised the Board in writing that the
Teamsters wished to challenge the ballot of Ms. Witham.       
Ms. Witham returned her ballot and it was marked as challenged. 
On December 21, 2006, the hearing examiner conducted the ballot
count.  None of the parties sent an election observer to the
count.  All ten ballots were returned to the Board as of the date
of the count.  The hearing examiner opened eight ballots and set
aside the two challenged ballots in keeping with the Board Rules. 
All eight were valid ballots, and the resulting count was four
votes for the Teamsters and four votes for the Association.    
As neither bargaining agent received the majority of valid votes
cast, and the challenged ballots were sufficient in number to
affect the result of the election, the hearing examiner was
unable to certify a bargaining agent or to complete the election
report.  These facts were summarized in a letter dated   
December 22, 2006, from the hearing examiner to the parties.   
In this letter, the parties were asked to participate in another
telephone conference, with the intent that sufficient facts could
be stipulated in order to allow the hearing examiner to resolve
the two challenged ballots.  Mr. Guignard advised the Board that
he did not believe the matter could be resolved through stipula-
tions, and requested that a hearing be conducted.  A hearing was
scheduled to resolve the two challenges on February 2, 2007 (the
first date of Mr. Guignard's availability), and notice of this
hearing was issued on January 10, 2007.
      An evidentiary hearing on the ballot challenges was held by
the undersigned hearing examiner on February 2, 2007, at the
Board's hearing room in Augusta, Maine.  In attendance at the
hearing were Mr. Guignard, representing the Teamsters, and    
Ms. Calderwood, representing the Association.  No representative 

[end of page 3]

for the Employer appeared at the hearing.[fn]2  The Teamsters
presented Roy Grotton, shop steward and trip coordinator, as its
witness.  Ms. Calderwood presented herself as the witness for the
Association.  The parties were given the opportunity to examine
and cross-examine witnesses and to offer evidence.  The parties
presented oral arguments at the close of the hearing.

     The jurisdiction of the Executive Director or his designee
to conduct elections and, as part of an election, to resolve a
challenge to ballots, lies in Title 26 M.R.S.A.  967(2) and
Chap. 11,  50 of the Board Rules.  The subsequent references in
this decision are all to Title 26, Maine Revised Statutes
Annotated, unless otherwise noted.


     The following administrative exhibits were admitted into
evidence without objection of the parties, except that        
Mr. Guignard objected to the employer's characterization of its
voter list (Administrative Exh. No. 4) as a seniority list:

     Exhibit No.         Title/Description

     Admin. Exh. 1       11/8/06 decertification/bargaining agent
                         election petition
     Admin. Exh. 2       11/8/06 service letter   
     Admin. Exh. 3       11/17/06 election scheduling letter and
     Admin. Exh. 4       11/17/06 voter list
     Admin. Exh. 5       11/27/07 letter of Calderwood
     Admin. Exh. 6       11/30/06 letter of hearing officer to
     Admin. Exh. 7       12/7/06 voter letter
     Admin. Exh. 8       12/15/06 letter of Guignard

     [fn] 2 The Employer, through its attorney, submitted a letter on
the day of the hearing stating the employer's "position" on the
challenge.  The letter was admitted into evidence over the objection
of the Teamsters (Employer's Exh. No. 1).

[end of page 4]

     Admin. Exh. 9       12/22/06 letter of hearing officer to
     Admin. Exh. 10      1/10/07 ballot challenge hearing letter
and notice     

     The following Teamsters' exhibits were admitted into
evidence despite the Association's objection as to relevance:

     Exhibit No.         Title/Description

     Teamsters' Exh. 1   Law re: school bus operation
     Teamsters' Exh. 2   Law re: school bus markings
     Teamsters' Exh. 3   Time cards (8)
     Teamsters' Exh. 4   Fall transport schedule (2 p.)
     Teamsters' Exh. 5   Seniority list
     The employer, though its attorney, submitted a letter
stating its "position" regarding the eligibility of the two
employees in question (Employer's Exh. No. 1).  The letter was
admitted into evidence despite the Teamsters' multiple
objections.  The parties agreed to admit as a joint exhibit the
collective bargaining agreement which expired on June 30, 2006. 
The Association did not offer any documents into evidence.


     The parties stipulated to the following facts:    

     1.  Barbara Witham was first employed by MSAD #5 in 2001 as
a cafeteria employee, a school-year position.  She is still
employed by MSAD #5.
     2.  Herman Thayer was first employed by MSAD #5 in March,
1993, as a bus mechanic.  He is still employed by MSAD #5.
     3.  Both Ms. Witham and Mr. Thayer were employed by MSAD #5
on the last pay date prior to the filing of the petition in this
matter and were employed on the date of the election.

[end of page 5]
                        FINDINGS OF FACT
     1.  The collective bargaining agreement (CBA) between MSAD
#5 and the Teamsters effective July 1, 2003, to June 30, 2006,
contains the following recognition clause:

                    ARTICLE 1 - RECOGNITION

     The MSAD #5 Board of Directors (hereafter the "Board")
     recognizes Teamsters Local #340 Bus Drivers Unit
     (hereafter the "Union") as the sole and exclusive
     bargaining agent for the purpose of negotiating
     benefits, wages, hours of work and working conditions
     for a unit consisting of those employees of the Board
     who have completed six (6) months of continuous
     employment in MSAD #5 in the position of bus driver,
     excluding all temporary, seasonal, on-call employees or
     supervisory personnel.

     2.  In order to legally drive a school bus in Maine, the bus
driver needs a CDL (school bus operator endorsement) driver's
license, as outlined in Title 29-A M.R.S.A.  2303.
     3.  Maine law defines a "school bus" as a "commercial motor
vehicle used to transport preprimary, primary or secondary school
students from home to school, from school to home or to and from
school-sponsored events."  "School bus" does not include a bus
used as a common carrier or a private school activity bus.  Title
29-A M.R.S.A.  2301(5).
     4.  Maine law requires a variety of markings, lights and
mirrors on school buses, including certain size printed letters
identifying it as a school bus, certain color of glossy yellow
paint, certain signal lights and mirrors, and a system of stop
arms.  Title 29-A M.R.S.A.  2302.
     5.  Herman Thayer has been employed as the bus mechanic for
MSAD #5 since 1993.  He works 40 hours per week, and is a year-
round employee.
     6.  The work that Mr. Thayer primarily performs for the
employer is servicing the buses.

[end of page 6]

     7.  Mr. Thayer has a CDL license.  He has, at times, driven
a school bus for the employer on an as-needed basis.  For
instance, in some past school years, he has driven a "shuttle"
bus between schools when there was a large middle school student
population.  He has not been needed to drive this shuttle in the
2006-2007 school year because the student population no longer
warrants it.
     8.  During the 2006-2007 school year, Mr. Thayer has
occasionally driven the bus on an as-needed basis for the
employer.  He does not drive (and has never driven) a regular bus
route transporting students between home and school.  
     9.  Three times each year, regular bus drivers can elect to
be placed on a seniority rotation for "extra trips" (trips of
longer than three hours' duration for sports, field trips, and
extracurricular events) pursuant to Article 15 of the CBA.  The
shop steward gives the forms used to request the extra trip
seniority rotation (Appendix B of the CBA) to all the regular bus
drivers.  The form is to be completed indicating whether or not
the driver wishes to be placed on the rotation.  The shops
steward does not give this form to Mr. Thayer, nor has Mr. Thayer
ever requested to be placed on the extra trip rotation.
     10.  Mr. Thayer performs his mechanic work in a bus bay
located in the back of the high school.  Nearby is a "pen" where
the buses are parked when not in use.  The bus bay area also
contains a break room for the bus drivers and the punch clock for
bus drivers.  Mr. Thayer has frequent contact with all the bus
drivers in this work area.
     11.  Early in his employment, Mr. Thayer received the same
health insurance benefits as other administrative (non-union)
employees.  More recently, he began receiving the same health
insurance benefits as employees under the bus drivers' CBA.
     12.  Brenda Witham has been employed by MSAD #5 since 2001,
when she was hired as a cafeteria employee.  At some point during 
[end of page 7]

her employment, Ms. Witham suffered a work-related injury. 
As the result of the injury, she could not perform the regular
duties of her cafeteria position.  At the beginning of the 2006-
2007 school year, Ms. Witham began driving a seven-passenger van
for MSAD #5.  The van is not marked or painted in any special
way, nor is it outfitted with any special light system. 
Ms. Witham's job is to transport certain students with special
needs, often taking them to locations outside of the school
district, such as to neighboring school districts with programs
suitable to these students.
     13.  The driver of the van is only required to have a Class
C driver's license.  Ms. Witham does not have a CDL license.  She
has not been eligible to participate in the extra trip seniority
     14.  Since she began driving the van, Ms. Witham has been
supervised by the Director of Special Services.  Her day-to-day
work (which students to pick up, where to take them) is
determined within the Special Services department.  Her time card
and payroll are also handled by this department.
     15.  Ms. Witham is employed during the school-year only. 
She works part-time hours as the van driver.
     16.  It is unclear how long Ms. Witham will perform services
as a van driver; this is dependent on the needs of the school
     17.  Ms. Witham has some interchange with the bus drivers. 
The van that she drives is parked in the "pen" where the buses
are parked.         
     18.  The Employer maintains at least one other van like the
one that Ms. Witham drives.  The van is sometimes used by school
employees (teachers, coaches) in order to drive students to
events and programs.
     19.  At some point in a past school year, Walter Yattaw (a
regular bus driver since 2001) left his bus driver position and 

[end of page 8]

agreed to perform the van driving position.  Eventually, the van
driving position was no longer needed due to changing student
needs, and Mr. Yattaw returned to his regular bus driver position
without loss of seniority under the CBA.
     20.  Roy Grotton has been employed by MSAD #5 since 1986 as
a bus driver.  He was most recently employed as the head bus
driver, but this position title was eliminated and, in the 2006-
2007 school year, Mr. Grotton's title has been changed to trip
coordinator.  As trip coordinator, Mr. Grotton ensures that all
regular and extra bus routes are filled by a bus driver.
     21.  Mr. Grotton is effectively the supervisor of the bus
drivers and of Mr. Thayer.  He turns in time cards for the bus
drivers (regular and substitute) and for Mr. Thayer to payroll.
     22.  Mr. Grotton is the Teamsters' shop steward and has been
involved in negotiating several collective bargaining agreements
for the bus drivers' unit.
     23.  Article 17 of the CBA provides that a seniority list is
to be established naming all employees covered by the agreement. 
This list is to be updated January 1st of each year, with a copy
sent to the "Union and to the steward," and posted on bulletin
boards.  In practice, the seniority list is not always updated on
a yearly basis, and it is not clear who creates the seniority
list (the Employer or the Teamsters).  In the week prior to the
conduct of this hearing, Mr. Grotton created a new "seniority
list" (Teamsters' Exh. No. 5) that contained eight names,
including Mr. Thayer but excluding Ms. Witham.  This list did not
contain the name of Ronnie Jones, a bus driver who resigned right
around the time of the election.  Prior to the creation of this
list, Mr. Grotton last created a list several years ago, after
the employment of a new bus driver.  This list was posted on the
employee bulletin board but is now gone.
     24.  In response to the request that the Employer furnish a
list of the names and addresses of employees in the bargaining 

[end of page 9]

unit who were eligible to vote, the Superintendent supplied a
list that he identified in the cover letter as all "bus garage
employees."  The list itself was entitled "Bus Drivers Seniority
List 2006-2007" (Admin. Exh. No. 4).   This list contained ten
names, including both Mr. Thayer and Ms. Witham.  It is not clear
that this list was ever furnished to the Union and the steward as
a "seniority list" pursuant to the CBA, or whether it was posted
on bulletin boards as provided in the CBA.
     The issue presented here is whether either Mr. Thayer or
Ms. Witham were eligible to vote in the decertification/
bargaining agent election conducted between December 7, 2006, and
December 21, 2006, for the MSAD #5 bus drivers' bargaining unit. 
I conclude for the reasons that follow that neither Mr. Thayer
nor Ms. Witham were members of the bargaining unit at the
relevant times; therefore, neither was eligible to vote in the
     Section 967(2) of the Maine Public Employees Labor Relations
Law ("MPELRL") provides the following regarding the conduct of

     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
     in the bargaining unit.

The procedures for a decertification election are the same as for
a representation election.  The law makes clear that elections
are to be conducted amongst members of a bargaining unit who are

[end of page 10]

public employees; employment in the relevant bargaining unit is,
therefore, an essential element of being an eligible voter.
     The process of an election (from petition to ballot count)
can often take several months.  The MPELRL does not itself
clarify at what points during the election process a voter must
be a member of a bargaining unit in order to participate in an
election--for instance, is an employee who is hired into a
bargaining unit just prior to the ballot count an eligible voter? 
The Board Rules address this question.  Chapter 11,  44 of the
Board Rules provide that it is the obligation of the employer to
deliver the list of eligible voters as follows:

     44.  Voter List.  At least 15 calendar days prior to
     the election or prior to the distribution of ballots
     for any election to be conducted by mail, the employer
     shall actually deliver to each labor organization that
     is a party to the proceeding and to any individual
     petitioner a list of 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 of this Chapter.

Chapter 11,  43 of the Board Rules provides:

     43.  Voter Eligibility.  The employees eligible to
     vote are those who were 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 set
     forth in 26 M.R.S.A.  962(6)[fn]3, 979-A(6),
     1022(11), 1282(5), or 1322(2).  Employees not working
     on election day because of illness, vacation, leave of
     absence or other reason are eligible to vote if they
     have a reasonable expectation of continued employment.
     . . .

Reading the law and the Board Rules together, then, an employee
must meet all three of the following criteria in order to be
eligible to vote:  (1) be employed in the relevant bargaining
unit on the last pay date prior to the filing of the petition; 

     [fn] 3 This provision of the law defines "public employee."

[end of page 11]

(2) be employed in the relevant bargaining unit on the date of
the election; and (3) meet the definition of a "public employee"
in the applicable law.
     The parties in the present matter have stipulated that both
Mr. Thayer and Ms. Witham were employed by MSAD #5 on the last
pay date prior to the filing of the petition and on the date of
the election.  No argument has been presented that these two
employees are not "public employees" as defined in the
Therefore, the only issue in dispute is whether the two employees
are in the bargaining unit.
     The focus of this inquiry naturally rests on the language of
the collective bargaining agreement between the Employer and the
Teamsters, as this reflects the most up-to-date description of
the parties' agreement on the composition of the bargaining unit. 
Article 1 (Recognition) of the 2003-2006 CBA provides:

                    ARTICLE 1 - RECOGNITION

     The MSAD #5 Board of Directors (hereafter the "Board")
     recognizes Teamsters Local #340 Bus Drivers Unit
     (hereafter the "Union") as the sole and exclusive
     bargaining agent for the purpose of negotiating
     benefits, wages, hours of work and working conditions
     for a unit consisting of those employees of the Board
     who have completed six (6) months of continuous
     employment in MSAD #5 in the position of bus driver,
     excluding all temporary, seasonal, on-call employees or
     supervisory personnel.

     [fn] 4 One of the exceptions to the definition of "public
employee" is  962(6)(F), employees who have been employed less than
six months.  Ms. Witham has been employed by the Employer in excess of
six months, but has not been employed as the van driver for six
months.  None of the parties to this voter eligibility proceeding
argued that        Ms. Witham is not eligible to vote because she is
not a public employee.  Both the Petitioner and the Employer advocated
that      Ms. Witham be found eligible to vote.  Mr. Guignard stated
at the hearing that his argument that Ms. Witham should not be found
eligible to vote lies in whether or not her work as a van driver--a
position he also argues is temporary--places her in the bargaining
unit, not in the fact that she has worked as a van driver less than
six months.  Tr. at 71-72.

[end of page 12]

In the clear and unambiguous language of the CBA, therefore,
employees in the position of "bus driver" are in the unit; other
employees are not in the unit, including those employees who are
temporary, seasonal, on-call or supervisory personnel.
     There is no dispute here that Mr. Thayer's position is as a
mechanic.  This is the position into which he was hired and which
he performs for the employer, basically on a full-time basis. 
While Mr. Thayer has a CDL license and has worked as a bus driver
on an as-needed basis, this bus driving has been "temporary" or
"on-call," thus excluded by the language of the recognition
clause.  Because Mr. Thayer is employed as a mechanic and not as
a bus driver, he is not included in the bargaining unit.
     Is there any basis upon which the hearing examiner could
"read" the recognition clause or reform the recognition clause so
that the position of mechanic is included along with the position
of bus driver?  The hearing examiner does not believe so, in the
face of the unambiguous language of the CBA.  First and foremost,
it is "black letter" law that if the language of a contract,
including a CBA, is plain and clear, there is no need to resort
to rules of interpretation and extrinsic evidence to discern the
parties' intent, and that plain and clear meaning should be
applied.  See e.g., NLRB v. Electric Workers Local 11, 772 F.2d
571, 575 (9th Cir. 1985).  The fact that the parties do not now
(apparently) agree whether the position of mechanic is included
in the bargaining unit does not alter the fact that the language
of the recognition clause is clear.  
     Second, it is well known that bargaining unit descriptions
for public sector bargaining units in Maine (whether in
Agreements on Appropriate Bargaining Unit, unit determination
reports, or CBA recognition clauses) generally list positions or
classification titles to be included in the unit, and sometimes
list positions or classification titles to be excluded from the
unit.  This is important as it places employees on notice when 

[end of page 13]

their rights might be affected, as occurred here when the notice
of this election (containing as it did the language from the
recognition clause of the CBA) was posted for the benefit the
employees.     A review of Board files quickly reveals numerous
examples of school support units which explicitly include the
title "mechanic" as a position specifically included in the
unit.[fn]5  This fact lends weight to the conclusion that the
omission of a position title, particularly a position that has
been long in existence at a work place, has significance:  the
parties did not negotiate the inclusion of this position in the
bargaining unit.
     Finally, the Teamsters argue that the hearing examiner
should use "community of interest" standards to find that
"mechanic" should be included as the position in this bargaining
unit.  Here, the Teamsters refer to  966(2):

     2.  Bargaining unit compatibility.  The executive
     director of the board or his designee shall decide in
     each case whether, in order to insure to employees the
     fullest freedom in exercising the rights guaranteed by
     this chapter and in order to insure a clear and
     identifiable community of interest among employees
     concerned, the unit appropriate for purposes of
     collective bargaining shall be the public employer unit
     or any subdivision thereof.

(Emphasis supplied).
Chapter 11,  22(3) further elaborates the elements of community
of interest (similarity in kind of work performed, common
supervision and determination of labor relations policy, etc.).  

     [fn] 5 The following are some of many examples of Maine school
support bargaining units that explicitly include mechanics, according
to Board records:  Brunswick School Department (bus drivers,
custodians, mechanics); Limestone School Department (bus drivers,
custodians, mechanics); MSAD #43 (bus drivers, maintenance,
custodians, head custodians, utility, material handlers, mechanics,
mechanic's helper); MSAD #1 (custodians, bus driver/custodians, bus
driver/mechanics); MSAD #3 (bus drivers,  mechanics, bus
aides/monitors); and MSAD #60 (bus drivers, custodians, mechanics,
garage helpers).

[end of page 14]

The community of interest factors are most typically considered
when a new bargaining unit is created and the parties cannot
agree on unit composition (unit determination) or when there is a
change, like the creation of a new position, and the parties
cannot agree on whether to include the position in an existing
unit (unit clarification).  Here, the position of mechanic has
been in existence for many years and the parties have apparently
never negotiated placing the position in this unit.  To determine
who may properly vote in a decertification election by
determining who has a "community of interest" with the positions
clearly in the bargaining unit would create much possibility for
mischief and unfairness; one could argue here, for instance, that
Ms. Witham, and a whole host of other positions such as
custodians, maintenance employees, and other MSAD #5 employees,
should vote in this election on the basis that they share a
community of interest with the bus drivers.  This would not be
appropriate.  Further, the hearing examiner finds support for
this conclusion in the fact that the National Labor Relations
Board will not utilize community of interest factors in
determining voter eligibility in a unit agreed to by stipulation,
if the terms of the agreement are clear and unambiguous.[fn]6

     [fn] 6 Parties to representation proceedings before the NLRB may
resolve issues of voter eligibility prior to election if they clearly
evidence their intention to do so in writing, a stipulated election
agreement.  To determine whether a challenged voter is properly
included in a stipulated election agreement, the NLRB applies a three-
part test:

     The Board must first determine whether the stipulation is
     ambiguous.  If the objective intent of the parties is
     expressed in clear and unambiguous terms in the stipulation,
     the Board simply enforces the agreement.  If, however, the
     stipulation is ambiguous, the Board must seek to determine
     the parties' intent though normal methods of contract
     interpretation, including the examination of extrinsic
     evidence.  If the parties' intent still cannot be discerned,
     the Board determines the bargaining unit be employing its
     normal community-of-interest test.

[end of page 15]

     For all of these reasons, the hearing examiner finds that
Mr. Thayer is not in the bargaining unit of MSAD #5 bus drivers,
and therefore was not eligible to vote in this election.
     The issue of whether Ms. Witham is an eligible voter
similarly rests on whether she is in the bargaining unit; the
question in her case is whether or not she is a "bus driver." 
This is a somewhat closer question because Ms. Witham provides
student transportation in a vehicle, a job much more "like" a bus
driver than a mechanic.  However, the Teamsters presented
convincing evidence (not contradicted by other record evidence)
that "school bus" and those who are qualified to drive a school
bus have both an ordinary meaning and a legal meaning.  By either
definition, an unmarked general minivan, such as any family might
own, cannot creditably be called a "bus."  There is also meaning
to the legal and licensing qualifications required of persons
allowed to "drive" a bus.  Under these definitions, encompassed
in the clear language of the recognition clause, Ms. Witham is
not a "bus driver" and she is not in the bargaining unit.    
This conclusion is further supported by the fact that other MSAD
#5 employees (teachers, coaches) sometimes drive students in such
vans.  While this driving is clearly in addition to their usual
job duties, it would be difficult to call them "bus drivers"
while they are performing this function.  
     The hearing examiner declines to add to this conclusion by,
as argued by the Teamsters, finding that Ms. Witham's position is
"temporary" and therefore excluded from the bargaining unit due
to the "temporary, seasonal, and on-call" language of the
recognition clause.  Although neither witness at the hearing had
a great deal of knowledge about Ms. Witham's day-to-day duties,
she has apparently been performing this van driving since the
beginning of the 2006-2007 school year on a part-time basis.   

     [fn 6 cont'd.] 
Caesar's Tahoe and IUOE, Local 39, 337 NLRB 1096, at 1097 (2002).

[end of page 16]

The witnesses also had little information about when and for how
long this van driving was performed in some previous school year
or years by a regular bus driver (Walter Yattaw) who took the
position until the van driving was not needed any more, and who
then returned to being a regular bus driver.  While the van
driving position is likely dependent on the number of special
needs students who need such transportation, there was     
insufficient evidence presented to find the work to be
     Therefore, and for the same reasons as articulated above
regarding Mr. Thayer, the hearing examiner finds that Ms. Witham
is not in the bargaining unit of MSAD #5 bus drivers, and
therefore was not eligible to vote in this election.
     Before closing the decision, the hearing examiner will
briefly discuss some of the extrinsic evidence offered by the
parties which she found was unnecessary to rely upon, in the face
of the clear and unambiguous language of the recognition clause.
A seniority list properly maintained pursuant to the terms of the
CBA should be a useful indication of which employees both the
Employer and the Union consider to be in the unit every year
(Article 17 of the CBA).  Here, this was not the case.  The
seniority list offered by the Teamsters (Teamsters' Exh. No. 5)
appeared to be a rather self-serving document created just prior
to the hearing.  It apparently replaced a list on the employee
bulletin board that cannot now be found.  While the Employer
submitted a document entitled "seniority list" as the voter list,
the Employer also identified it as a list of "all bus garage
employees."  It apparently was prepared for purposes of this
election and not delivered to the shop steward or posted on
bulletin boards as a contract seniority list would be.  Further,
the Employer's list contained the name of Mr. Thayer who, since
that time, the Employer has claimed was not in the bargaining
unit.  Therefore, these seniority lists were not in keeping with 

[end of page 17]

the provisions of the CBA and were not helpful in determining the
issue here.  Some of the other evidence presented (the fact that
Mr. Yattaw took the van driving position at some point and then
returned to bus driving but maintained his seniority, the fact
that Mr. Thayer had different health insurance coverage than the
bus drivers during much of his employment until recently, etc.)
was simply too ambiguous to aid in the interpretation of the
meaning of the recognition clause, if the clause had needed such

     For these reasons, I hold that neither Mr. Thayer nor
Ms. Witham were eligible to vote in the decertification/
bargaining agent election held for the MSAD #5 bus drivers'
bargaining unit, within the meaning of 26 M.R.S.A.  967 and
Chapter 11,  43 and  44 of the Board Rules.  Their ballots,
challenged and set aside at the December 21, 2006, ballot count,
shall not be opened nor counted in the election.  An election
certification shall be issued based upon the eight ballots opened 
at the December 21, 2006, ballot count, which declares that no
majority was obtained and a runoff election is required.

Dated at Augusta, Maine, this 12th day of February, 2006.

                                MAINE LABOR RELATIONS BOARD

                                Dyan M. Dyttmer                  
                                Designee of the Executive Director

Pursuant to 26 M.R.S.A.  968(4), any party aggrieved by this
determination may appeal it 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 five (5)
working days of the date of issuance of this determination.  See
Chap. 10,  7, Chap. 11,  30, and Chap. 11,  52 of the Board
Rules for requirements.

[end of page 18]