PROCEDURAL HISTORY

     The National Correctional Employees Union (hereinafter "NCEU") 
filed a Petition for Unit Determination and Bargaining Agent 
Election, together with a showing of interest, on July 1, 2015.  
The Unit Determination seeks severance of the Department of 
Corrections employees whose classifications are currently included 
in the State Executive Branch Institutional Services Bargaining 
Unit.  If the severance is granted, the Petition also seeks a 
decertification/bargaining agent election for the newly-formed unit 
of Corrections Department employees.

     Prior to serving the Petition on the Public Employer, the 
State of Maine ("State"), and the incumbent Bargaining Agent, 
Council 93, American Federation of State, County and Municipal 
Employees ("AFSCME"), the Executive Director reviewed the petition
for sufficiency pursuant to Chapter 11, § 9 of the Board's Rules 
and Procedures.  The review resulted in the preliminary decision 

[end of page 1]


that the petition was legally sufficient, timely filed, and 
supported by a numerically sufficient showing of interest.  To wit:

       *  The Petitioner, NCEU is a public employee     
          organization within the meaning of 26 M.R.S.A.           
          § 979-A(1) and has standing to file the petition.            
          Board Rules, Ch. 11, § 5(1).
    
       *  A petition for unit determination is the appropriate 
          mechanism "to sever a group of positions from an  
          existing unit to create a new separate unit."        
          Board Rules, Ch. 11, § 1(1).
       
       *  The showing of interest was numerically sufficient    
          (30% minimum), considering either the Petitioner's 
          estimate of the number of employees in the proposed   
          unit (500) or the total number of Department of 
          Corrections positions in the Institutional Services 
          Bargaining Unit (704) reported by the State.[fn]1
  
       *  On its face, the 2013-2015 collective bargaining 
          agreement between AFSCME and the State for the Insti- 
          tutional Services Bargaining Unit expired on June 30, 
          2015; therefore, the petition was timely filed.
  
       On July 6, 2015, AFSCME filed a Motion to Dismiss the 
"Decertification/Bargaining Agent Election portion of the Petition" 
based on the "contract bar doctrine" and on the inadequacy of the 
showing of interest.[fn]2  On July 14, 2015, and July 15, 2015, 
respectively, AFSCME and the State submitted timely responses to 
the merits of the Unit Determination Petition. 
       
       Although AFSCME's motion to dismiss was limited to the 
election portion of the pending petition, the controlling statute, 
26 M.R.S.A. § 979-F (2)(D), provides that "[w]here there is a 
collective bargaining agreement in effect, no question concerning 
unit or representation may be raised except during the period not 
more than 90 nor less than 60 days prior to the expiration date of 
the agreement." (emphasis added).  Material submitted by AFSCME
 
[fn]1  The State provided the figures on April 30, 2015, in response to an inquiry 
from the Board regarding an earlier petition filed by NCEU.

[fn]2  During the course of the pre-hearing conference, AFSCME preserved their right 
to assert this claim at the appropriate time, if the severance is granted and the 
petition for decertification/bargaining election is processed.

[end of page 2]

      
with its motion as well as subsequent Legislation[fn3] raised the 
question of whether the statutory contract bar rule requires 
dismissal of the petition for unit determination.
  
       The contract bar issue presents a jurisdictional question 
which is potentially dispositive; therefore, it must be addressed 
first.  To facilitate resolution of this issue, the parties were 
invited to a pre-hearing conference and were asked to be prepared 
to address whether a 120-day notice, mentioned in the Termination 
paragraph of Article 62 of the 2013-2015 collective bargaining 
agreement, was given and, if so, whether a collective bargaining 
agreement was in effect at all relevant times since June 30, 2015.  
In particular, the parties were directed to present documentary 
evidence regarding the following:

       *  Was a 120-day notice given?
       *  Was a notice of termination given?
       *  If so, when was it given?
       *  What was the termination date specified in the 
          notice?
       *  Was the final tentative agreement ratified by      
          the membership?
       *  What date was the ratification?
       *  Was a successor agreement signed by the parties?
       *  What date was it signed?

In addition, the parties were asked to bring a list of witnesses 
they intend to call and a list of the documents each party intends

[fn]3  L.D. 1453, An Act To Fund Agreements with Bargaining Units for Certain 
Executive Branch Employees and Ensure Equitable Treatment for Other Executive 
Branch Employees was adopted by the Legislature on July 16, 2015, signed by the 
Governor on July 17, and became Law as Ch. 376, Public Laws of 2015, as emergency 
legislation effective July 17, 2015.  Section 1 of the Law adjusts the salary 
schedules for executive branch employee bargaining units represented by AFSCME, 
the Maine State Troopers Association, and the Maine State Law Enforcement 
Association, "effective at the beginning of the pay week commencing closest to 
September 1, 2015, ... consistent with the terms of any tentative agreements 
ratified prior to September 30, 2015."

[end of page 3]


to offer to facilitate document management at the evidentiary 
hearing.

       The undersigned presided at the pre-hearing conference on 
September 4, 2015, at the Board's offices in Augusta.  Appearing on 
behalf of the parties were:  Dan Felkel, Esq., Jon Goodman, Esq., 
and Labor Representative William Doyle on behalf of the Petitioner; 
Joseph Delorey, General Counsel, Staff Representative James Mackie, 
and Field Service Director Gordon Blaquiere on behalf of AFSCME; 
and Julie Armstrong, Esq., Nicholas Laskey, Esq., and Charlene 
Gamage, Human Resources Director for the Department of Corrections, 
on behalf of the State of Maine.

       During the pre-hearing conference, NCEU and the State 
presented preliminary witness and exhibit lists.  AFSCME requested 
that its preliminary lists be submitted no later than September 11, 
the request was granted, and the submissions were timely received.  
The parties were directed to file and serve simultaneous main 
briefs, addressing the contract bar issue, no later than October 2, 
2015, and reply briefs, if any, no later than October 9, 2015.  The 
parties all filed main briefs and no reply briefs were received.

                              JURISDICTION

       The Petitioner, National Correctional Employees Association, 
is a public employee organization within the meaning of § 979-A(1) 
of the State Employees Labor Relations Act ("SELRA" or "ACT"),    
26 M.R.S.A. § 979, et seq.  The American Federation of State, 
County and Municipal Employees is the certified bargaining agent, 
as defined in § 979-A(1) of the Act, for the State Executive Branch 
Institutional Services Bargaining Unit.  The jurisdiction of the 
executive director to hear and decide this matter lies in of      
§§ 979-E(1) and (2) and 979-F(2)(D) of the Act, as interpreted by 
Chapter 11, of §§ 1(1) and 23 of the Board's Rules and Procedures.
      
[end of page 4]

      
                          STIPULATIONS OF FACT

     During the course of the pre-hearing conference, the parties 
agreed to the following facts:

     1.  A 120-day notice of intent to renegotiate the terms of  
the collective bargaining agreement between the State of Maine and 
AFSCME Council 93 for the State Institutional Services bargaining 
unit 2013-2015 collective bargaining agreement was given.  The 120-
day notice, mentioned in the conclusion of negotiations article   
of the contract, was given by James Mackie of AFSCME to Breena 
Whitcomb, the chief negotiator for the Executive Branch, on 
December 4, 2014.

     2.  A notice of termination was given by Breena Whitcomb of 
the State to James Mackie of AFSCME on June 30, 2015.  That notice 
would be effective on July 10, 2015.
  
     3.  The notice of termination given on June 30 was the first 
and only notice given by either party.
 
     4.  A final tentative agreement was reached on the successor 
collective bargaining agreement.  That final tentative agreement 
was reached between the State and AFSCME Council 93 on July 1, 
2015, subject only to ratification by the membership of AFSCME 
Council 93 in the institutional services bargaining unit.

     5.  The final tentative agreement (and, actually, the 
successor collective bargaining agreement) was reduced to writing 
and was signed by the parties on July 1, 2015.
  
     6.  The ratification vote was held on July 7, 2015.         
The contract was ratified by the membership and notice of the 
ratification was given by AFSCME Council 93 to the State on        
July 7, 2015.
  
     7.  In negotiations since at least 2000, the State and AFSCME 
have not signed formal successor collective bargaining agreements 
other than the signed tentative agreements which they had signed 
prior to ratification.

     8.   The successor collective bargaining agreement, referred 
to in the foregoing stipulations, consists of the existing contract 
as modified by the set of TA's.

                              EXHIBITS

     In addition to the 2013-2015 collective bargaining agreement 
for the Institutional Services Bargaining Unit which is in the 
      
[end of page 5]

      
record as an attachment to the petition, AFSCME Exhibit 1 was 
admitted with no objection.  AFSCME Exhibit 1 consists of the 
following documents:

     a.  December 4, 2014, letter from Jim Mackie to Breena 
Whitcomb, subject line Institutional Services Bargaining Unit 
AFSCME Locals, certified mail receipt attached.

     b.  Letter from Breena Whitcomb to James Mackie, dated 
June 30, 2015 regarding termination of agreement.
  
     c.  A one-page document, dated June 30, 2015, titled State   
of Maine Package Proposal to AFSCME Option 1 with the signatures  
of Breena Whitcomb and James Mackie; signed July 1, 2015, 
incorporating by reference the tentative agreements signed by 
AFSCME and the State, consisting of 34 pages, copies of which   
were provided for the record.

     d.  Affidavit of James Mackie dated September 4, 2015, 
regarding the contract ratification vote held July 7, 2015, with 
tally sheet that he prepared on July 7, reflecting the affirma-
tive vote of those voting from the bargaining unit.

                            DISCUSSION 

     The State Employees Labor Relations Act seeks to achieve a 
balance between two public policy goals.  The first is to provide 
public employees a reasonable, periodic, and predictable oppor-
tunity to select or change their bargaining agent or to choose not 
to be represented for purposes of collective bargaining.  The 
second policy goal is to foster improvement of the relationship 
between public employees and their employer through a stable 
collective bargaining relationship.  MSAD #16 Support Staff A
ssoc./MEA/NEA and MSAD #16 Board of Directors, No 00-UD-04, at 4 
(Apr. 26, 2000).  The Act seeks to achieve this balance through the 
contract bar provision, including the 30-day open "window" period, 
and the prohibition on collective bargaining agreements longer than 
three years.

     The contract bar provision of the Act, 26 MRSA § 979-F 
(2)(D), states:


[end of page 6]


      No question concerning representation may be raised within 
   one year of a certification or attempted certification.   
   Where there is a valid collective bargaining agreement in 
   effect, no question concerning unit or representation may be 
   raised except during the period not more than 90 nor less than 
   60 days prior to the expiration date of the agreement.     
   Unit clarification proceedings are not subject to this time 
   limitation and may be brought at any time consistent with 
   section 979-E, subsection 3.      

This provision, together with the three-year maximum term for 
negotiated agreements (found in § 979-D(1)(C)), guarantees that 
bargaining unit employees can raise questions concerning repre-
sentation at least once every three years.  In fact, the only 
filing period guaranteed by Statute is the 30-day "window" period.[fn]4  
Other than that brief window, the "contract bar" precludes repre-
sentation filings while a collective bargaining agreement is in 
effect.  Thus, waiting to file a petition for election after 
expiration does not guarantee a timely filing.  If there is no 
hiatus between the expiring and the successor agreements, the 
contract bar applies.

     Turning to the facts of this case, Article 62 of the 2013-2015 
collective bargaining agreement between AFSCME and the State for 
the Institutional Services Bargaining Unit states:
 
     Term of Agreement

           This Agreement shall be effective from July 2, 2013 
     through June 30, 2015, unless otherwise specified herein.

     Termination

          Unless otherwise specifically provided for herein, 
     this Agreement shall apply to those employees in the 
     bargaining unit on the date of the signing of this 


[fn]4  In mitigation of the effect of the short window period, Chapter 11, § 8(1) of 
the Board's Rules provides that showing of interest documents in support of a 
petition for election may be up to six months old on the date they are filed with 
the Board.


[end of page 7]


     Agreement and shall be effective as of July 2, 2013 and 
     shall remain in full force and effect until the 30th day 
     of June 2015.  It shall be automatically renewed from 
     year to year thereafter unless either party shall notify 
     the other in writing at least one hundred twenty (120) 
     days prior to the anniversary date that it desires to 
     modify this Agreement.  In the event that such notice is 
     given, negotiations shall begin not later than ninety 
     (90) days prior to the anniversary date; this agreement 
     shall remain in full force and effect and be effective 
     during the period of negotiations or until notice of 
     termination of this Agreement is provided to the other 
     party in the manner set forth in the following paragraph.  

          In the event that either party desires to terminate 
     this Agreement, written notice must be given to the other 
     party not less than ten (10) days prior to the desired 
     termination date which shall not be before the 
     anniversary date set forth in the preceding paragraph.

     On December 4, 2014, AFSCME gave the State a 120-day notice of 
intent to seek modification of the expiring agreement.  Since the 
term of the collective bargaining agreement in the instant case was 
two years, the effect of the 120-day notice under the "termination" 
provision of Article 62 would have been to continue the agreement 
"in full force and effect" during negotiations for a successor 
agreement until the successor agreement was concluded or June 30, 
2016,[fn]5 whichever occurred earlier, absent a notice of termination.[fn]6
The State gave AFSCME a notice of termination on June 30, 2015, 
effective on July 10, 2015.  I conclude, therefore, that a   

[fn]5  An automatic renewal provision cannot operate to extend a collective bargaining 
agreement beyond the 3-year maximum set in statute.   National Correctional 
Employees Union v. York County, No. 11-07, Interim Decision at 7-8 (May 17, 
2011).

[fn]6  In AFSCME v. State of Maine, Dept. of Administrative and Financial Service et 
al., Nos. 03-13 & 04-03 (Apr. 21, 2004), the collective bargaining agreement was 
reached on February 1, 2002, and was set to expire on June 30, 2003.  Id. at 7. 
Under a Term of Agreement/Termination Article that was essentially identical to 
the one in this case, the State gave timely notice that it would terminate the 
agreement on June 30, 2013. Id. at 12-13.  Interpreting and applying the Term  of 
Agreement/Termination Article, the Board observed that "the collective bargaining 
agreement would have remained in effect following June 30, 2003, had the State 
not exercised its right to terminate the contract in accordance with Article 57 
of the Agreement." Id. at 28.    

[end of page 8]


collective bargaining agreement was in effect until at least    
July 10, 2015.

     In the facts of this case, AFSCME and the State reached final 
tentative agreement on a successor collective bargaining agreement 
on July 1, 2015.  This agreement was written, it consisted of the 
expiring collective bargaining agreement and several tentative 
agreements modifying that agreement, and it was signed by the chief 
negotiators of the two parties.  The Governor's chief negotiator 
had the statutory authority to reach binding agreement at the 
table, § 979-A(5), but the Union needed ratification by the Union 
membership in the Institutional Services bargaining unit.  See Fox 
Island Teachers Ass'n v. MSAD No. 8 Board of Directors, No. 81-28, 
at 6-7 (MLRB Apr. 22, 1981)(If "a principal party has reserved the 
right to ratify, any agreement reached by the negotiators will not 
be concluded or binding until it is ratified by the principal."), 
quoted and applied, Teamsters Local 48 v. City of Westbrook, No. 
89-05, at 9-10 (MLRB Oct. 25, 1988).  A ratification vote was held 
on July 7, 2015, the agreement was ratified by a majority of the 
Union members who voted, and, on the same date, AFSCME notified the 
State that the agreement had been ratified.  The Governor's chief 
negotiator has the authority to reach final agreement without the 
ratification of the Legislative branch of the government--to argue 
otherwise would be in direct contravention of the Constitutional 
separation of powers in State government.[fn]7  Consequently, once 
AFSCME notified the State of ratification by the Union members, a 
collective bargaining agreement was concluded.

     The final question is the significance, if any, of the fact 
that the Legislature did not enact the bill to fund the cost items 

[fn]7  In Maine Dept. of Inland Fisheries and Wildlife v. Maine State Employees Ass'n, 
503 A.2d 1285, 1288 (Me. 1986), the Law Court held that the Legislature's 
appropriation of money to fund cost items in collective bargaining agreements 
negotiated by the Governor does not constitute "ratification" of the terms of the 
collective bargaining agreement.  

[end of page 9]


included in the collective bargaining agreement until July 16, 
2015, and the bill was not signed by the Governor until July 17, 
2015, at which point it became Law.  As part of the duty to 
negotiate in good faith, § 979-D(1)(E)(3) of the Act provides:

          Cost items shall be submitted for inclusion in the 
     Governor's next operating budget within 10 days after the 
     date on which the agreement is ratified by the parties.  
     If the Legislature rejects any of the cost items 
     submitted to it, all cost items submitted shall be 
     returned to the parties for further bargaining.

     The AFSCME members ratified the agreement on July 7th and the 
Legislature considered the funding bill, L.D. 1453, on July 16th.  
The Governor met the statutory obligation to submit the funding 
bill within 10 days of the ratification.  Had the Legislature 
declined to fund the cost items in the agreement, the Law provides 
that the cost items submitted would be returned to the parties for 
further bargaining.  The balance of the agreement would be in full 
force and effect for the term agreed to by the parties.[fn]8

     The 2013-2015 collective bargaining agreement between AFSCME 
and the State of Maine for the State Employee Institutional 
Services Bargaining Unit expired on July 10, 2015.  Prior to the 
expiration of that agreement, the parties reached agreement on a 
successor collective bargaining agreement on July 7, 2015.  There 
was a valid collective bargaining agreement in effect at all 
relevant times; therefore, the Petition for Unit Determination and 

[fn]8  This result would parallel that where negotiating parties are unable to reach 
complete agreement on a successor collective bargaining agreement and have 
exhausted the statutory dispute resolution processes:  mediation, fact-finding, 
and interest arbitration.  In that case, all open issues remaining after fact-
finding are submitted to interest arbitration and the arbitrators' decision is 
"final and binding on the parties," except as to those issues regarding 
"salaries, pensions and insurance," where the arbitrators may recommend a 
settlement, which is "advisory and shall not be binding upon the parties."       
§ 979-D(4)(D).  In that instance, the successor collective bargaining agreement 
consists of the agreements reached by the parties and the binding portions of the 
interest arbitration award.  Mountain Valley Educ. Ass'n v. MSAD No. 43, 655 A.2d 348,
354 (Me.  1995).

[end of page 10]


Bargaining Agent Election filed by the National Correctional 
Employees Union on July 1, 2015 must be dismissed pursuant to the 
provisions of 26 M.R.S.A. § 979-F(2)(E).

                                ORDER

     On the basis of the foregoing stipulated facts and discussion 
and by virtue of and pursuant to the powers granted to the 
executive director 26 M.R.S.A. §§ 979-E(1) and (2) and 979-F(2)(D), 
it is
 
     ORDERED that the Petition for Unit Determination and 
     Bargaining Agent Election for the State Employee  
     Institutional Services Bargaining Unit filed by the   
     National Correctional Employees Union on July 1, 2015,       
     is DISMISSED.


Dated at Augusta, Maine, this 26th day of October 2015

						   MAINE LABOR RELATIONS BOARD



						   /s/______________________________          						   
                           Marc P. Ayotte
						   Executive Director

 
Any party aggrieved by this decision may appeal to the Labor 
Relations Board by filing a notice of appeal with the Board within 
15 days of the date of this decision.  26 M.R.S.A. § 979-G(2).  See 
Chapter 11, § 30 of the Board's Rules for further relevant 
information. 

[end of page 11]