IBEW and Fox Islands Electric Cooperative, No. 86-UD-10, affirmed 87-A-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-UD-10 Issued: August 15, 1986 ______________________________ ) INTERNATIONAL BROTHERHOOD OF ) ELECTRICAL WORKERS, AFL-CIO ) ) and ) UNIT DETERMINATION REPORT ) FOX ISLANDS ELECTRIC ) COOPERATIVE, INC. ) ______________________________) This unit determination proceeding was initiated on January 15, 1986, when the International Brotherhood of Electrical Workers, AFL-CIO (hereinafter referred to as "Union") filed a petition for appropriate unit determination, pursuant to 26 M.R.S.A. 966 (Pamph. 1985). An exchange of relevant documents between the parties was supervised by the undersigned hearing examiner for the Maine Labor Relations Board ("Board") in the Bureau of Labor Standards Conference Room, State Office Building, Augusta, Maine, on February 26, 1986. Throughout this proceeding, the Union was represented by Wayne W. Whitney, Jr., Esq. The Fox Islands Electric Cooperative, Inc., ("Employer") was represented at the document exchange and at the first day of the evidentiary proceeding by Mark L. Haley, Esq., and, thereafter, was represented by John J. Sears, Esq. The first day of the evidentiary proceeding herein was conducted on April 9, 1986, in Room 124 of the State Office Building, Augusta, Maine. Although scheduled to be held on May 29, 1986, in Room 126 of the State Capitol Building, the second day of the evidentiary proceeding was postponed on that date because the witness scheduled to testify was ill and unable to attend. The second day of the evidentiary proceeding was held on June 6, 1986, in the conference room of the offices of Fitzgerald, Conley & Haley in Bath, Maine. The parties having agreed to proceeding in this manner, the testimony of the former General Manager of the Employer, David C. Seuss, was taken by telephone using a speakerphone. [-1-] ______________________________________________________________________ The Union's petition seeks the creation of a bargaining unit com- posed of all full time and regular part time Linemen, Meter Readers, Administrative Clerks, Office Clerks, and Billing Clerks--excluding professional employees, CETA employees, and guards--employed by the Fox Islands Electric Cooperative, Inc. The Employer opposed the Union's petition on the grounds that the Fox Islands Electric Cooperative, Inc., is not a "public employer," within the definition of 26 M.R.S.A. 962(7) (Pamph. 1985). At the outset of the eviden- tiary proceeding in this matter, the parties agreed that consideration of this action should be bifurcated. The hearing examiner would first receive evidence, weigh and decide the jurisdictional issue. If it was first determined that the Board has jurisdiction to make an appropriate unit determination herein, the Board would reconvene the evidentiary proceeding in order to receive evidence pertinent to the usual unit determination issues. The only witness presented by the Union was Richard Pray, one of its International Representatives, and the sole witness presented by the Employer was David C. Seuss, the Employer's former General Manager who is currently the General Manager of the Village of Hardwick Light Department in Hardwick, Vermont. The following exhibits were admitted, without objection, into the record: Union Exhibit No. 1 Fox Islands Electric Cooperative, Inc., By-Laws, Adopted January 8, 1975 and Amended July 25, 1977 and July 28, 1980 Union Exhibit No. 2 Fox Islands Electric Cooperative, Inc., Articles of Incorporation, Adopted January 9, 1975 Union Exhibit No. 3 Fox Islands Electric Cooperative, Inc., Membership List Union Exhibit No. 4 Transcript of hearing before the National Labor Relations Board, Boston Region, Hearing held on July 26, 1985 Union Exhibit No. 5 Decision and Order of the Regional Director, National Labor Relations Board, Region I, in the matter of -2- ______________________________________________________________________ Fox Islands Electric Cooperative, Inc. and International Brotherhood of Electrical Workers, AFL-CIO, CLC, Case No. 1-RC-18,536, dated August 19, 1985 Union Exhibit No. 6 Telegram from National Labor Relations Board Acting Executive Secretary, dated November 26, 1985, on behalf of the N.L.R.B., affirming the Region I Decision (Union Exhibit No. 5) Union Exhibit No. 8 Fox Islands Electric Cooperative, Inc., Cumulative Monthly Summaries for the month of December of each year from 1976 through 1985 Union Exhibit No. 9 Fox Islands Electric Cooperative, Inc., Annual Meeting Minutes, 1975 through 1985 The only other exhibit offered into evidence at the evidentiary pro- ceeding, Union Exhibit No. 7, was a copy of 35 M.R.S.A. 2801, et seq., the "Cooperative Enabling Act." Since the statutes of the State of Maine may be reviewed and relied upon without being placed in evi- dence, the hearing examiner excluded this exhibit. The parties were afforded full opportunity to examine and cross-examine witnesses, to present evidence, and to make argument. JURISDICTION The Petitioner, the International Brotherhood of Electrical Workers, AFL-CIO, is a lawful organization which has as its primary purpose the representation of employees in their employment relations with employers, within the meaning of 26 M.R.S.A. 962(2) (1974). The Fox Islands Electric Cooperative, Inc., is not a public employer, within the definition of 26 M.R.S.A. 962(7) (Pamph. 1985). Since the Fox Islands Electric Cooperative, Inc., is not a public employer, the hearing examiner, under 26 M.R.S.A. 966(1) (Pamph. 1985), is without jurisdiction to make an appropriate unit determination herein. -3- ______________________________________________________________________ FINDINGS OF FACT On the basis of the record as a whole, the hearing examiner finds: 1. The International Brotherhood of Electrical workers, AFL-CIO, is a lawful organization which has as it primary purpose the represen- tation of employees in their employment relations with employees, within the meaning of 26 M.R.S.A. 962(2) (1974). 2. On January 9, 1975, pursuant to the provisions of the Rural Electrification Act of 1936, 7 U.S.C.A. 901, et seq., and of the Maine Cooperative Enabling Act, 35 M.R.S.A. 2801, et seq., the Fox Islands Electric Cooperative, Inc., was created for the purpose of supplying electricity to the residents of the towns of Vinalhaven and North Haven. 3. At the present time, those wishing to receive electric ser- vice from the Cooperative must first become members. To become a member, one must agree to purchase power from the Cooperative and pay a $15.00 "patronage capital" fee. Under its by-laws, Cooperative mem- bership is open to "[a]ny person, firm, association, corporation, or body politic or any subdivsion thereof. . . ." 4. Each separate service hook-up with the Cooperative's electri- cal transmission system includes a meter by which the Cooperative can measure the quantity of electricity used by that consumer. 5. The Cooperative deems each meter to be a separate membership requiring payment of a $15.00 "patronage capital" fee. 6. The Cooperative has approximately 1200 members, including commercial, industrial, residential, and municipal users. 7. At the time that the Cooperative was first incorporated, approximately 200 separate users refused to join the Cooperative but nevertheless continued to purchase electricity from the Cooperative. Those are the only consumers who continue to receive power from the Cooperative without being members. 8. Among the rights of membership in the Cooperative is the right to attend the Cooperative's annual meeting and to participate, -4- ______________________________________________________________________ either in person or by proxy, in the election of the Cooperative's Board of Trustees. As is the case in all meetings of the Cooperative's membership, the members may vote for the Trustee candidates on a one meter - one vote basis. 9. The Cooperative's Board of Trustees consists of nine members: six from Vinalhaven and three from North Haven. One must be a member of the Cooperative to be eligible to serve on the Board of Trustees. The Trustees are elected for two-year terms. 10. The Board of Trustees determines the general course of con- duct of the utility and hires the General Manager, who serves at the pleasure of the Board. The General Manager oversees the day-to-day operation of the Cooperative. 11. The members of the Cooperative can change its management through the normal election process at the annual meeting or through a recall petition signed by the lesser of 10% of the Cooperative's mem- bers or 300 members. Such a recall petition would precipitate the convening of a special meeting of the Cooperative's membership where the question of removal of Board members would be discussed and voted upon. 12. Both rural electric cooperatives and investor owned utilities are, under the laws of the State of Maine, public utilities whose organization, operation, and record keeping are regulated in essen- tially the same way by the Maine Public Utilities Commission. 13. As a non-profit organization, the Cooperative is not required to pay state or federal income taxes; however, the Cooperative does pay state or local sales, property, and employee taxes. Investor-owned utilities are for-profit organizations who, in addition to paying the latter types of taxes, are also required to pay state and federal income taxes. 14. Investor-owned utilities are owned by their shareholders who elect a board of directors, through voting on a per-share basis. An investor-owned utility's shareholders need not be consumers of the utility in order to purchase the company's stock. -5- ______________________________________________________________________ 15. Rural electric cooperatives have several available funding sources which may not, in most circumstances, be utilized by investor owned utilities. Among such sources are: a. low interest loans from the Rural Electrification Administration, an agency of the United States Department of Agriculture; b. loans from the Cooperative Finance Corporation, an organization created by rural electric cooperatives from throughout the United States; and c. the issuance and sale of bonds through the Maine Municipal Bond Bank. 16. Investor-owned utilities raise capital through the sale of stocks, bonds, and other publicly-traded debentures. 17. Both rural electric cooperatives and investor-owned utilities must receive the approval of the Public Utilities Commission prior to incurring debt. In addition to such approval, rural electric coopera- tives must also gain the acquiescence of the Rural Electrification Administration. 18. Both rural electric cooperatives and investor-owned utilities may, by exercise of the right of eminent domain, take such property as is reasonably necessary for them to perform their operations. 19. The towns of Vinalhaven and North Haven, whose combined geographic area coincides with the Cooperative's service area, are members of the Cooperative and participate in its affairs on the same one meter - one vote basis as the other members. The town of Vinalhaven joined the Cooperative on July 25, 1975, and has approxima- tely ten meters. The town of North Haven joined the Cooperative on July 2, 1975. 20. The Cooperative has no written contracts with the towns of Vinalhaven and North Haven to provide electric service to those muni- cipalities. 21. The municipalities of Vinalhaven and North Haven can neither appoint nor remove trustees from the Cooperative's Board of Trustees and the towns have no greater control over the operation of the -6- ______________________________________________________________________ Cooperative than do its other members. 22. Some residents of Vinalhaven and North Haven are not members and do not receive service from the Cooperative. Those persons not receiving power from the Cooperative either produce their own electri- city with generators or use gas powered appliances and lights. 23. A municipal utility is owned and operated by a political entity such as a city or town. On the other hand, a rural electric cooperative is owned by its consumer members. 24. The Fox Islands Electric Cooperative is neither the agent of nor does it act on behalf of any municipality or town or any sub- division thereof. DECISION At the outset of this unit determination proceeding, the Union argued that the Employer was a "public employer" under the provisions either of 26 M.R.S.A. 979-A(5) (Pamph. 1985) or of 26 M.R.S.A. 962(7) (Pamph. 1985). During the course of the proceeding, the Petitioner abandoned its averment that the Employer was a department, agency, or commission of the State of Maine, within the meaning of 26 M.R.S.A. 979-A(5). Even if this contention had not been discarded, no evidence was produced to indicate that the Employer is part of Maine State government. The thrust of the Petitioner's remaining allegation is that the Employer is a "public employer" because it is either a municipality or because it constitutes a "board, commission, couucil, committee or other persons or body acting on behalf of any municipalilty or town or any subdivision thereof," within the meaning of 26 M.R.S.A. 962(7). The Petitioner's initial argument was procedural in nature. The Union contended that, because it had argued that it was a "political subdivision" of the State of Maine before the National Labor Relations Board ("NLRB"), the Employer is barred by the principles of res judi- cata or collateral estoppel from denying the same in the present action. Under the relevant section of the National Labor Relations Act, 29 U.S.C. 152(2), the NLRB's jurisdiction does not extend to -7- ______________________________________________________________________ cover the employees of "any State or political subdivision thereof." The Regional Director of the NLRB was persuaded that the Employer was a political subdivision of the State of Maine and, therefore, was exempt from the NLRB's jurisdiction. Fox Islands Electric Coopera- tive, Inc. and International Brotherhood of Electical Workers, AFL- CIO, CLC, NLRB Region I Case No. 1-RC-18,536, slip op. at 3 (Aug. 19, 1985). Both doctrines mentioned by the Union bar the re-litigation of an issue between two parties when that question has already been decided by a tribunal of competent jurisdiction. The Union's argument is unsuccessful because, although the Board considers decisions issued under the National Labor Relations Act to often be persuasive in interpreting parallel sections of Maine law, Baker Bus Service v. Keith, 428 A.2d 55, 56 n.3 (Me. 1981), the NLRB's decisions are not controlling on this Board. Second, the Labor Relations Board has held that, even if a party is estopped from opposing a unit petition by its prior statements or conduct, such estoppel does not prevent the hearing officer from ruling on the merits of the petition. City of Bath and Local 1828, Council 74, AFSCME, MLRB No. 81-A-01, slip op. at 6 (Dec. 15, 1980). The Union's first contention on the merits is that the Cooperative is a public employer, within the defition of 26 M.R.S.A. 962(7), because it is a municipality. In support of this position, the Petitioner presents a policy analysis grounded in political theory. The Union avers that the Cooperative is a municipality because it was founded by the residents of a particular geographic area, who select its leaders through their votes, and which provides a service necessary for the public good. Although the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. 961, et seq., does not define the term "municipality," that term is defined in the title of the Maine Revised Statutes which deals with municipalities and counties. Title 30 M.R.S.A. 1901(6) (Supp. 1985) states: Municipality. "Municipality" includes only cities and towns, but shall include plantations in chapter 239, sub- chapters V and VI and, for purposes of regulating motor vehicles on icebound inland lakes pursuant to section 2151, subsection 7. -8- ______________________________________________________________________ The following evidence tended to establish that the Cooperative is a municipality. Like the residents of a city or town, the members of the Cooperative may attend the annual meeting and elect the members of the Board, which in turn sets the overall policies and direction of the enterprise. Second, the Cooperative may raise capital by issuing bonds through the Maine Municipal Bond Bank. The Bank, under 30 M.R.S.A. 5167(1) (1978), may only loan money to "governmental units." Third, the Cooperative, like a municipality, may take private property by right of eminent domain. The evidence discussed in this paragraph persuades the hearing examiner that the Cooperative is not a municipality, within the meaning of 26 M.R.S.A. 962(7). First, the election procedure men- tioned above is common to all corporate entities incorporated under the laws of the State of Maine. 13-A M.R.S.A. 603(2) and 611 (1981). Second, the definition of the term "governmental unit" in the Maine Municipal Bond Bank Act includes not only counties, cities, and towns but also "quasi-municipal corporations." 30 M.R.S.A. 5163(7) (1978). Third, all electric power companies, including investor-owned utilities, may take such lands and easements, as are reasonably necessary for the conduct of their business, by right of eminent domain. 35 M.R.S.A. 2306 (1978). Fourth, the Cooperative's service area is the same as the combined geographic areas of the existing town of Vinalhaven and North Haven. Fifth, unlike cities and towns, some residents of the Cooperative's service area have opted to neither join nor to receive power from the Cooperative. Finally, there is no evi- dence that the few persons who formed the Cooperative in January of 1975 intended to create a municipal corporation under the Constitution of the State of Maine. Having weighed all of these factors separately and together, the hearing examiner concludes that the Cooperative is not a municipality within the meaning of 26 M.R.S.A. 962(7). The Union's second major contention is that the Cooperative is a "public employer," within the meaning of 26 M.R.S.A. 962(7) of the Act, because the Employer is a "body acting on behalf of any municipa- lity or town or any subdivision thereof. . . ." The Labor Relations Board has held that general agency principles should be applied in -9- ______________________________________________________________________ determining whether an entity is "acting on behalf of" a public employer. Baker Bus Service and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determination Report, slip op. at 5 (Oct. 6, 1978), aff'd sub nom. Baker Bus Service, Inc. v. Keith, 416 A.2d 727 (Me. 1980). The Law Court held that the critical element for determining whether an organization is acting on behalf of a municipa- lity is whether the former "acted as a 'servant' subject to the City's control or right to control." 416 A.2d, at 731. The evidence cited in this paragraph persuades the hearing exa- miner that the Cooperative is not acting on behalf of a public employer, within the context of 962(7) of the Act. The Cooperative does not have a contract to provide service to the towns of Vinalhaven and North Haven. The two towns, whose geographic area coincides with the Employer's service area, did not join the Cooperative until approximately six months after the Cooperative was created. The muni- cipalities of Vinalhaven and North Haven can exercise no greater control over the management and operations of the Cooperative than do any of the Cooperative's other members. Each of the members has the same right to attend the annual membership meetings and to vote on the same one meter - one vote basis. The member municipalities may neither appoint nor remove members of the Cooperative's Board of Trustees. No evidence was presented that said municipalities have made significant financial contributions to the Cooperative or have provided land or equipment to the Cooperative. The hearing examiner, in light of the above evidence, holds that the Cooperative is not "acting on behalf of" a public employer, within the meaning of 26 M.R.S.A. 962(7). Since the Cooperative is neither a municipality nor a body acting "on behalf of" a public employer, within the meaning of 26 M.R.S.A. 962(7), the hearing examiner must conclude that the Fox Islands Electric Cooperative, Inc., is not a public employer within the defi- nition of 962(7) of the Act. Having held that the Employer is not a covered public employer, the Board has no jurisdiction to fashion an appropriate bargaining unit of the Cooperative's employees. -10- ______________________________________________________________________ ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A, 966 (Pamph. 1985), the hearing examiner ORDERS: That the Petition for Appropriate Unit Determination, filed by the International Brotherhood of Electrical Workers, AFL-CIO, on January 15, 1986, in MLRB Case No. 86-UD-10, and seeking formation of a comprehensive bargaining unit of employees of the Fox Islands Electric Cooperative, Inc., be and hereby is dismissed. Dated at Augusta, Maine, this 15th day of August, 1986. MAINE LABOR RELATIONS BOARD /s/____________________________ Marc P. Ayotte Hearing Examiner The parties are advised of their right pursuant to 26 M.R.S.A. 968(4) (Pamph. 1985) to appeal this report to the full Labor Relations Board by filing a notice of appeal with the Board within 15 days of the date of this report. -11- ______________________________________________________________________