STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 87-A-02
Issued: November 25, 1986
_______________________________
)
PHIPPSBURG SCHOOL DEPARTMENT, )
)
Complainant, )
)
v. ) DECISION AND ORDER
)
AFSCME, COUNCIL 93, )
)
Respondent. )
_______________________________)
In response to the June 11, 1986 filing of a petition seeking a
bargaining agent election among a unit of the Phippsburg School
Committee's Bus Drivers, Cooks, Custodians and Food Service Workers,
an agent of the Maine Labor Relations Board (Board) conducted a secret
ballot election between 8:45 and 9:00 a.m., on September 22, 1986. As
a result of this election, in which all seven eligibles voted, AFSCME,
Council 93, AFL-CIO, was elected by a five to two vote and certified
as exclusive collective bargaining agent.
On September 26, 1986, Donald S. McCobb, Associate Superintendent
of the Phippsburg School Department, filed a document with the Board
in order to "register a complaint with regard to the conduct of [the
bargaining agent election]." More specifically, McCobb alleges, in
pertinent part, that:
1) Prior to the hour of the election . . . an eligible
voter received a communication [unsolicited] while in
the school from the proposed agent, AFSCME, which
was clearly calculated to influence the vote of the
participant. . . .
2) During the period of voting, a few of the eligible
voters, apparently from [sic] those favoring a vote for the
proposed agent, were allowed to congregate in the relatively
small [polling] area, offering . . . improper influence over
the election outcome.
McCobb states that it "may well be that neither of the above fac-
tors had any bearing on the election outcome." However, McCobb
contends that the complained-of events "constitute a serious breach in
[-1-]
______________________________________________________________________
the proper and legal conduct of the election" and "improprieties"
which undermine both the "good will . . . necessary between the repre-
sentatives of the community serving on the school committee and the
employees," and the possibility of "harmony among employees."
On September 29, 1986, Richard V. Taylor, a representative of
AFSCME, Council 93, filed a response to McCobb's allegations.
Taylor's response notes that McCobb cites no statutory provisions and
that McCobb does not object to the outcome of the election. Taylor
asserts that he distributed the material referred to in McCobb's
complaint only on September 18, 1986, and not on the day of the elec-
tion. Taylor also asserts that the voters left after voting and
congregated, if at all, only in the voting queue. Finally, Taylor
states that, to his belief, the Board's agent handled the election
properly.
Upon due notice, on October 8, 1986, the Board, consisting of
Chairman Edward S. Godfrey, presiding, Thacher E. Turner, Employer
Representative, and George W. Lambertson, Employee Representative,
convened an evidentiary hearing in the cause. After preliminary
questioning of McCobb the hearing was adjourned by the Board and the
case was immediately deliberated.
JURISDICTION
The Board has jurisdiction over this matter pursuant to 26
M.R.S.A. 968(4) & (5) (1974 & Pamph. 1986). Neither party has
contested the Board's jurisdiction over this matter.
DISCUSSION
The Complainant does not request that the results of the election
be set aside. Additionally, the Complainant does not allege a viola-
tion of any section of the Municipal Public Employees Labor Relations
Act (Act). Although the Complainant produced no witnesses at hearing,
the Board and AFSCME elicited the sworn testimony of the complainant
concerning his personal knowledge of the complained-of events. The
Complainant testified that he personally observed several persons
"known to be sympathetic to the Union" congregated and conversing in
-2-
______________________________________________________________________
the polling area five minutes prior to the end of the scheduled
polling period. However, he produced no witnesses with personal
knowledge of whether balloting had ceased prior to the time of this
observation. The Complainant stated at hearing that his only objec-
tion to the content of the "communication" alleged to have been
distributed prior to the hour of the election was that it was "subtly
persuasive." The Complainant produced no witnesses to testify as to
the exact time or extent of distribution of the complained-of com-
munication; rather, he merely stated that he had been informed that it
had been distributed to at least one eligible voter prior to the
polling period. The Complainant did not choose to designate an elec-
tion observer as set forth in Board Election Rule 3.05.
At the conclusion of the questioning of the Complainant, AFSCME
moved that the complaint be dismissed for failure to state a claim
under either Board Rules 3.07 and 3.08, that the complaint be
dismissed for lack of jurisdiction based on the Complainant's failure
to comply with the proof of service requirements set forth both in
Election Rule 3.07 and Prohibited Practice Rule 4.04, and that the
complaint be dismissed for failure to comply with the requirements of
Prohibited Practice Complaint Rule 4.03 concerning the content of
Prohibited Practice Complaints.
The Board requires the highest standards of election conduct of
both the Board's agents and election participants in order to insure
that employees may exercise a free and untrammeled choice in elec-
tions conducted to resolve questions concerning representation. See
Bridgton Federation of Public Employees v. Hamill, No. 81-54
(Me.L.R.B. Mar. 3, 1982). Evidence of violation of the electioneering
ban contained in a Board Notice of Election and evidence of the coer-
cion of voters through either compromise of the secrecy of balloting
or overwhelming physical presence in the polling area are certainly
pertinent to our determination of whether these sought-after labora-
tory conditions have been maintained. However, in the interest of
stable labor relations the Board is reluctant to find that conduct has
occurred which requires that an election's result be overturned and a
certification be revoked, where, as here, the evidence establishing
-3-
______________________________________________________________________
the existence of such alleged conduct consists solely of uncorrob-
orated hearsay.
The Complainant produced no witnesses having personal knowledge
of whether any electioneering took place within the polling area
during actual voting. Moreover, upon examination of the
"communication" which Complainant decries as "subtly persuasive," we
find no threat or coercive statement and no mischaracterization of the
Board's processes which rise to the level of per se violation of the
Act. The Complainant's charge must be dismissed as unsupported by
record evidence.
ORDER
Based on the foregoing findings of fact and discussion and by
virtue of and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. 968(4) & (5) (1974
& Pamph. 1986), it is ORDERED:
That the objection to conduct affecting the results of
election on September 26, 1986, in Board Case Number
87-A-02, be and hereby is DISMISSED.
Dated at Augusta, Maine, this 25th day of November, 1986.
MAINE LABOR RELATIONS BOARD
The parties are hereby advised
of their right pursuant to 26 /s/_________________________________
M.R.S.A. 968(5)(F) (Pamph. Edward S. Godfrey
1986) to seek review of this Chairman
Decision and Order by the
Superior Court by filing a
complaint in accordance with
Rule 80B of the Rules of Civil /s/_________________________________
Procedure within 15 days of Thacher E. Turner
the date of the Decision. Employer Representative
/s/_________________________________
George W. Lambertson
Employee Representative
-4-