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.

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     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
                                           
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                                  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.
                  
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                           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,
         
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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.                                                                              
         
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    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
                  
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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          
                                                                             
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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.          
                                  
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     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          
         
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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.          
                                                                     
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                                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.
         

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