STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 81-A-04
Issued: September 17, 1981
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)
COUNCIL NO. 74, AMERICAN )
FEDERATION OF STATE, )
COUNTY AND MUNICIPAL )
EMPLOYEES, AFL-CIO ) DECISION AND ORDER
) ON ELECTION APPEAL
and )
)
CITY OF LEWISTON )
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This is an appeal by Council No. 74 of the American Federation of State, County
and Municipal Employees, AFL-CIO (Union) of a certification of the results of a repre-
sentation election, issued pursuant to 26 M.R.S.A. 967(2) on June 8, 1981 by the
Executive Director of the Maine Labor Relations Board. The Executive Director deter-
mined that a voter challenged by the Union at the June 5, 1981 election was eligible
to vote, and that, counting the challenged voter's ballot cast against the Union,
the results of the election stood at a 5 to 5 tie. Since the Union did not receive
a majority of the votes cast, the Executive Director certified that no bargaining
agent was elected. The Union contends on appeal that the Executive Director erred
in ruling the challenged voter eligible to vote because the voter was retired at
the time of the election, and because the election officer mishandled the challenged
ballot during the election.
A hearing on the appeal was held on June 26, 1981, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Ziegenbein and Employee Representa-
tive Wallace J. Legge. The Union was represented by Stephen P. Sunenblick, Esq.,
and the City of Lewiston (City), the employer of the employees for whom the repre-
sentation election was held, by Frederick G. Taintor, Esq. The parties were given
full opportunity to examine and cross-examine witnesses, introduce evidence, and
make argument. Both parties filed post-hearing briefs, which have been considered
by the Board.
JURISDICTION
The Union is an aggrieved party within the meaning of 26 M.R.S.A. 968(4).
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The City is a "public employer" as defined in 26 M.R.S.A. 962(7). The jurisdic-
tion of the Maine Labor Relations Board to hear this appeal and render a decision
and order lies in 26 M.R.S.A. 968(4).
FINDINGS OF FACT
Upon review of the entire record, the Board finds:
1. On May 12, 1981, the Maine Labor Relations Board scheduled a representation
election for June 5, 1981 for the supervisory command officers employed by the Lew-
iston Police Department. Printed on the ballot for the election were two choices,
reading: "I desire to be represented by Council #74, American Federation of State,
County and Municipal Employees, AFL-CIO" and "I desire No Representative."
2. Captain Normand Cloutier, a member of the supervisory command officers
bargaining unit, worked his last day for the Police Department on Friday, May 15,
1981. From May 16 to June 14, 1981, Cloutier was paid for his accumulated vacation
time. Cloutier was eligible to retire on June 1, 1981, having on that date served
twenty-two years with the Police Department, and could have on June 1st received
a "lump sum" check for all of his accumulated vacation and sick leave time. How-
ever, after talking with the City's Personnel Director several times in late April
and early May, 1981, Cloutier decided to remain on the payroll until mid-June so
that he could be credited with additional vacation and sick leave days for the
month of June. City rules provide that employees who receive 80 hours of compensa-
tion during a month are credited with vacation and sick leave time for that month.
Thus, by being paid until June 14th, Cloutier received an additional 1-1/2 days of
vacation time and an additional day of sick leave. Cloutier received his final
paycheck on June 24, 1981, covering his remaining vacation days and his accumulated
sick leave time.
3. On June 2, 1981, Cloutier submitted his letter of resignation to the Chief
of Police. The letter states that Cloutier had completed his twenty-two years of
service and that he planned to retire effective Saturday, June 6, 1981. Cloutier
turned his weapon and equipment in to the Police Department on June 8, 1981. Police
Department officers who are on vacation are subject to be called in to work in the
event of an emergency. Cloutier was not called in during the period when he was
receiving his accumulated vacation pay.
4. Cloutier's name was included on the list of eligible voters prepared by
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the City for the June 5th election. When Cloutier appeared to vote at the election,
the Union's observer challenged his eligibility to vote on the ground that he had
retired from the Department. The Board's election officer permitted Cloutier to
vote pursuant to the "challenged ballot" procedure set forth in Rule 3.06(A) of the
Board's Rules and Procedures, 12 - 180 CMR Chapt. 3, 3.06(A). Cloutier was given
a ballot which he marked and returned to the election officer, who put the ballot
in a "challenged ballot" envelope, identified the voter and the cause of the chal-
lenge on the envelope, and then placed the envelope on the table next to the ballot
box. Upon counting the unchallenged ballots at the conclusion of the election,
the election officer found that 5 officers voted in favor of the Union, while 4
officers voted for no representation. Since the challenged ballot could affect the
outcome of the election, the election officer ruled that he would deliver the
challenged ballot envelope to the Executive Director for a determination regarding
Cloutier's eligibility.
5. On June 8th, the Executive Director reviewed the circumstances surround-
ing the challenged ballot, determining that since Cloutier was on the City's pay-
roll and was subject to call on June 5th, he was eligible to vote even though he
had not worked for several weeks. The challenged ballot envelope was opened and
Cloutier was found to have voted for no representation. The Executive Director
accordingly ruled that the election resulted in a 5 to 5 tie, and certified, in a
report and certification issued June 8th, that no bargaining agent was elected.
Pursuant to 26 M.R.S.A. 968(4), the Union filed a timely appeal on June 8, 1981.
DECISION
This case provides us with our first opportunity to interpret our rule con-
cerning voter eligibility in representation elections. Rule 3.02(A) of our Rules
and Procedures states: "The employees eligible to vote shall be those who were
employed on the last pay date prior to the filing of the petition and who remain on
the payroll on the date of the election, and meet the requirements set forth in
Title 26, M.R.S.A., 962, 6." 12-180 CMR Chapt. 3, 3.02(A). The Union urges
that we construe this rule the same way that the National Labor Relations Board
(NLRB) construes its voter eligibility rule - a construction which provides that
an employee must work on the initial eligibility date and on the date of the elec-
tion to be eligible to vote. The City contends that we should adopt a literal
interpretation to the effect that employees on the payroll at the election date
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are eligible even if they have ceased working.
After carefully considering the propriety of these two interpretations, we
have decided that a construction consistent with the NLRB's interpretation is
the sounder approach. Since Cloutier was not working on June 5th and since he
had no reasonable expectation of returning to work at the Police Department, we
find he was not eligible to vote. We will grant the Union's appeal and remand
this proceeding to the Executive Director for issuance of a certification certi-
fying that the Union was selected the bargaining agent of the superior officers
command unit by a vote to 5 to 4.[fn]1
In one of its first decisions, the NLRB promulgated the following rule re-
garding voter eligibility:
"Those eligible to vote shall be such employees on such
payroll and those employed for such work between that
[initial eligibility] date and the date of this decision,
excepting those who have quit or have been discharged for
cause during such period."
Wayne Knitting Mills, Inc., 1 NLRB 53, 55 (1935). Our voter eligibility rule, promul-
gated in Rule 3.02(A), is based on the NLRB rule and should be interpreted the same
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1. The Union's argument that Cloutier's ballot must be set aside because the
election officer mishandled the ballot is meritless. The record shows that
in allowing Cloutier to vote by the challenged ballot procedure, the elec-
tion officer departed from the provisions of Rule 3.06(A), 12 - 180 CMR
Chapt. 3, 3.06(A), in two respects: 1) the election officer rather than
Cloutier sealed Cloutier's ballot in the challenged ballot envelope, and
2) the envelope was not deposited in the ballot box by Cloutier but in-
stead was placed on the table next to the ballot box by the election officer.
While we do not condone any failure to observe the election rules, the
standard against which we measure the election officer's actions is
"whether the manner in which the election was conducted raises a reasonable
doubt as to the fairness and validity of the election." Polymers, Inc.,
174 NLRB 282, enforced 414 F.2d 999 (2nd Cir. 1969), cert. denied 396 U.S.
1010 (1970). Nothing shown by the Union raises any doubt as to the fairness
or validity of the election, and we conclude that the fact that the officer
did not strictly observe the rules and regulations does not by itself
warrant the setting aside of Cloutier's ballot or the ordering of a new elec-
tion.
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way that the NLRB's rule is interpreted.[fn]2 The NLRB and the United States Courts
of Appeal have consistently interpreted the NLRB standard to require that "an
employee must work both on eligibility date and on the election date" to be
eligible to vote. Union Paper Goods Co. v. NLRB, 102 LRRM 2218 (9th Cir. 1979).
Employees not working on election day because of illness, vacation, leave of
absence, layoff, or some other reason are eligible to vote if they have a "rea-
sonable expectation of employment within a reasonable time in the future."
Whiting Corp. v. NLRB, 200 F.2d 43, 45 (7th Cir. 1952); see also NLRB v. New
England Lithographic Co., Inc., 589 F.2d 29, 33 (1st Cir. 1978).
An employee who terminates his employment effective on a date subsequent to
the election but who stops working prior to the election and is being paid on the
election date for accumulated time is not eligible to vote even though he is still
on the payroll: "the Board's test . . . is the clear, objective fact of actual
work on the eligibility dates." Roy N. Lotspeich Publishing Co., 204 NLRB 517,
518 (1973). The Courts of Appeals have found this test "wholly consistent with
the statute," and have approved the test on the ground that "no more objective
standard [is] available." NLRB v. General Tube Co., 331 F.2d 751, 753 (6th Cir.
1964).
The "actual work" interpretation employed in the private sector plainly is
applicable to our voter eligibility rule. By providing that eligible employees
are those who are employed on the last pay date prior to the filing of the petition
and who remain on the payroll on the election date, Rule 3.02(A) contemplates
that an eligible employee will remain employed on the election date. The phrase
"on the payroll" implies that the employee must on election day be receiving pay
for current services, as opposed to receiving compensation for prior services,
such as accumulated vacation or sick leave time. Employees who are not working on
the election date but who remain on the payroll receiving compensation for services
previously rendered are not eligible.
We find the "actual work" interpretation of Rule 3.02(A) more appropriate
than the "on the payroll" construction urged by the City for several reasons.
First, the "actual work" interpretation is an easily-applied and understood
standard which applies to both the initial eligibility date and the election date.
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2. Neither the National Labor Relations Act (NLRA) nor the Municipal Public Employees
Labor Relations Act (MPELRA), the statute under which this case arises, prescribe
standards for determining voter eligibility. As noted, the NLRB has promulgated
its voter eligibility rule in its case law, while we have issued our rule pursuant
to our rulemaking authority. We have noted that the unit determination and repre-
sentation election sections of the NLRA and MPELRA are "analogous." City of
Bangor v. Local 1599, IAFF, Case No. 80-A-03 at 3-4 (July 18, 1980). Compare 29
U.S.C.A. Section 159 with 26 M.R.S.A. Sections 966 and 967.
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There is a considerable body of case law applying the standard in diverse factual
situations, which will provide interested parties and this Board with ample guid-
ance. To the best of our knowledge, no other jurisdiction in the country applies
the "on the payroll" interpretation, so we would be charting a new course in untested
waters were we to adopt that standard.
Second, although there is not the slightest hint of wrongdoing in the instant
case, the "on the payroll" test could allow improper employer-employee collusion
in establishing voter eligibility. We can envision cases in which the employer
would keep an employee who had stopped working on the payroll merely for the purpose
of voting in an upcoming election. The courts frown on proposed standards which
would allow "employer unilateral control over voter eligibility." NLRB v. New
England Lithographic Co., Inc., supra at 36. The "actual work" standard properly
leaves the matter up to the employee,who must decide whether to continue to work
until election day.
In short, we interpret Rule 3.02 to require that an employee actually work on
the initial eligibility date and on the date of the election to be eligible to vote,
or, if not working on election day, to have a reasonable expectation of returning
to work within a reasonable time. Applying this interpretation to Captain Cloutier's
situation, it is plain that he was not eligible to vote at the June 5th election.
His last day of work for the City was May 15, 1981. It is undisputed that he intended
to retire, as evidenced by his June 2nd letter and his discussions about retirement
with the Personnel Director in late April and early May. The reason that he remained
on the payroll on June 5th was to accumulate enough compensated hours in June to be
credited with additional vacation and sick leave time. He did not actually work on
June 5th or thereafter, and had no reasonable expectation of returning to work, as
he retired as of June 6th.
The fact that Cloutier was subject to call on June 5th is not sufficient rea-
son to say he had a reasonable expectation of returning to work. He was not called
in to work on June 5th or on any other day after his last day of work on May 15th,
and he was retired as of June 6th. Equally immaterial is the fact that Cloutier re-
tired effective the day after the election. The employee in Roy N. Lotspeich Pub-
lishing Co., supra, terminated his employment effective on a date subsequent to
the election but was declared ineligible since he was not working on election day.
Unlike the City, we do not see any meaningful distinction in the fact that the
employee in Lotspeich was being paid accumulated holiday pay on election day while
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Cloutier was receiving accumulated pay for vacation time. The principle enunciated
in Lotspeich that an employee who is on the payroll but who has ceased working on
election day is not eligible to vote is fully applicable in the present case. The
fact that Cloutier may have considered himself to be an employee on election day
also is not controlling. The voters declared ineligible in the NLRB and court cases
presumably considered themselves employees when they voted, but such subjective
beliefs were not determinative of their eligibility. See, e.g., Whiting Corp. v.
NLRB, supra at 45.
Since Cloutier did not work on June 5th and since he had no reasonable expec-
tation of returning to work at the Police Department, we conclude he was not eligi-
ble to vote in the representation election. With his ballot set aside, the result
of the election is 5 votes to 4 in favor of the Union. We will grant the Union's
appeal and remand this proceeding to the Executive Director with instructions that
Cloutier's ballot be set aside and the Union certified as the bargaining agent for
the superior command officers bargaining unit.
0RDER
On the basis of the foregoing findings of fact and discussion and by virtue of
and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
968(4), it is ORDERED:
1. The Union's appeal is granted. Captain Cloutier was
not eligible to vote in the June 5, 1981 representation
election and his ballot must be set aside.
2. This proceeding is remanded to the Executive Director with
instructions that Captain Cloutier's ballot be set aside and
the Union certified, by a 5 to 4 vote, as the bargaining
agent for the superior officers command unit.
Dated at Augusta, Maine this 17th day of September, 1981.
The parties are advised of MAINE LABOR RELATIONS BOARD
their right pursuant to 26
M.R.S.A. 968(4) and 972
to seek a review by the Su- /s/_______________________________________
perior Court of this deci- Edward H. Keith, Chairman
sion by filing a complaint
in accordance with Rule
8OB of the Rules of Civil /s/_______________________________________
Procedure within 30 days Don R. Ziegenbein, Employer Representative
after receipt of this
decision.
/s/_______________________________________
Wallace J. Legge, Employee Representative
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