STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 88-EA-01
Issued: September 19, 1988
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MERRYMEETING EMPLOYEES ASSOCIATION/ )
MTA/NEA )
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and ) DECISION AND ORDER
)
LOCAL 2010, COUNCIL 74, AMERICAN ) ON
FEDERATION OF STATE, COUNTY AND )
MUNICIPAL EMPLOYEES/AFL/CIO ) OBJECTIONS TO ELECTION )
)
and )
)
MAINE SCHOOL ADMINISTRATIVE DISTRICT #75 )
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The facts in this matter are not in dispute. In 1976 Council 74,
American Federation of State, County and Municipal Employees, AFL-CIO
("AFSCME") was certified as the bargaining agent for the support per-
sonnel bargaining unit at Maine School Administrative District #75
("SAD #75"). AFSCME has negotiated successive collective bargaining
agreements for that bargaining unit since its certification and the
most recent agreement, which was in force during the time of the crit-
ical events herein, contained a termination date of June 30, 1988.
In February, 1988, consistent with the provisions of the Municipal
Public Employees Labor Relations Act ("Act"), AFSCME gave timely
notice of its intent to negotiate the terms of a new agreement and
negotiations with SAD #75 thereafter occurred. During the month of
April, 1988, and well within the statutory "window period,"[fn]1 the
Merrymeeting Employees Association/MTA/NEA ("Association") filed a
certification/decertification election petition with the Maine Labor
Relations Board ("Board") by which it sought to replace AFSCME as the
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1 Section 967(2) (Pamph. 1987) of the Act provides: "Where there
is a valid collective bargaining agreement in effect, no question con-
cerning 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."
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certified representative for the employees in the unit. The Acting
Executive Director of the Board scheduled an election for May 27,
1988. AFSCME protested that date as inappropriate for reasons which
will be discussed below.[fn]2
An evidentiary hearing was held on June 1, 1988, Chairman
William M. Houston presiding, with Employer Representative Thacher E.
Turner and Employee Representative George W. Lambertson. The
Merrymeeting Employees Association/MTA/NEA was represented by Shawn C.
Keenan, Esq., General Counsel for the Maine Teachers Association.
Local 2010 was represented by John Ezhaya, a Field Representative for
AFSCME, Council 93. MSAD #75 was not represented although Robert
Libby, Administrative Assistant to the superintendent, was in attend-
ance. The parties were given full opportunity to examine and cross-
examine witnesses, to introduce documentary evidence, and to make
argument. The parties filed posthearing briefs, the last of which was
received on July 1, 1988, which were considered by the Board in
reaching its decision.
JURISDICTION
The Board has jurisdiction over this matter pursuant to 26
M.R.S.A. 968(4) & (5) (1974 & Pamph. 1987). Neither party has
objected to the Board's jurisdiction over this matter.
DISCUSSION
AFSCME has appealed the action of the Acting Executive Director
in scheduling the election prior to the expiration of the existing
collective bargaining agreement. It claims that there is no authority
in the Act for such action and also that it is at odds with the case
law of the National Labor Relations Board ("National Board") whose
precedent this Board has frequently followed in representation mat-
ters. The core of AFSCME's claim is that the "insulated period"[fn]3
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2 Although AFSCME had other objections to the procedure leading to
the election, at the hearing it waived all objections save for the
scheduling of the election during the 60-day period prior to the ter-
mination date of the agreement.
3 The "insulated period" is the time remaining between the last day
of the "window period" and the expiration of the contract.
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should be a time when the incumbent agent can concentrate on the obli-
gations owed the employees in the unit, including the responsibility
to seek a favorable successor agreement, free from the contentiousness
and devisiveness occasioned by a decertification election campaign.
AFSCME also argues that confusion concerning the legal obligations and
responsibilities of the competing entities may occur, depending on the
results of the election.[fn]4 Finally, AFSCME raises the issue of impair-
ment of contract, which is proscribed by Article I, Section 11 of the
Constitution of this State. It therefore requests the Board to
reverse its decision in Old Orchard Beach.[fn]5 That decision upheld the
right of the Executive Director to hold an election during the
"insulated period."
The Association, on the other hand, believes that Old Orchard
Beach is sound labor law; that the collective bargaining agreement has
not been abridged, but only the agent changed; and that any confusion
regarding legal rights and duties arising out of a vote to decertify
the existing agent should await an appropriate case in point.
We see no reason to change the result or rationale of our Old
Orchard Beach decision. It is in the interest of the employees in the
bargaining unit, and consonant with sound labor relations principles,
that an election be held as soon as practicable consistent with our
Election Rules and provided there is fair notice to the participants.
To do so in no way conflicts with the purpose of the "insulated
period." This period of time is "insulated" only in the sense that
it is intended to free an incumbent agent from the disruption or
harassment which would result if decertification petitions could be
lawfully filed in the last days or hours of an expiring agreement. In
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4 For example, AFSCME posits that although a newly certified agent
would have the responsibility to administer the agreement for whatever
time remains of its term, the former incumbent would be entitled to
continued remission of dues deducted per provisions of the agreement.
For the reasons stated in the body of our Discussion, we will not
express an opinion concerning this postulation.
5 Old Orchard Beach Police Department, Decision and Order
(M.L.R.B., Dec. 16, 1974).
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Deluxe Metal,[fn]6 which AFSCME believes supports its position, the
National Board adopted a "window period" rule precisely to forestall
the possibility of mischievous, late-filed petitions during the last
weeks of a collective bargaining agreement, as had previously been the
practice. Under the prior practice before the National Board, notice
of representation hinged on the automatic renewal date of an
agreement. If the contracting parties did not forestall renewal of
the agreement, an insurgent group was obligated to take action before
the renewal date, and could do so even on the last day of the expiring
agreement. However, if the parties gave notice forestalling renewal,
a petitioner gained additional time in which to file an election peti-
tion and thus intrude itself into the bargaining relationship at an
even later date. The National Board established a "window period" to
provide a uniform time for the filing of representation petitions and
thus relieve the incumbent agent, the employees and the employer of
the anxiety and vexatiousness inevitably caused by late-filed
petitions. In Deluxe Metal the National Board stated:
The Board believes the 60-day insulated period desirable for
several reasons. It will give rival unions a definite time-
guide as to when to organize, and employees will know when
to seek a change in representatives if they so desire.
Thus, it will avoid as much disruption of labor relations as
possible during a contract term. All potential petitioners
will be required to have their petitions on file at least 61
days before the terminal date of the contract or run the
risk that a contract executed during the 60-day insulated
period will prevent another opportunity to file for the new
contract's reasonable term. It will also prevent the threat
of overhanging rivalry and uncertainty during the bargaining
period, and will eliminate the possibility for employees to
wait and see how bargaining is proceeding and use another
union as a threat to force their current representative into
unreasonable demands.
Under the previous rules, if the parties did not forestall
renewal of their contract, a petitioner was obligated to
take appropriate action before the automatic renewal date.
But if the parties gave notice forestalling renewal, a peti-
tioner obtained additional time in which to file, thus
enabling it to intrude into the bargaining relationship
merely because the parties were attempting to perform their
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6 Deluxe Metal Furniture Co., 121 NLRB 995, 42 LRRM 1470 (1958).
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bargaining obligations. The Board finds no particular merit
in extending a rival union's opportunity merely because the
parties are attempting to perform their statutory duty. The
question of whether or not automatic renewal of a contract
has been forestalled should be considered only after the
parties have failed to execute a new agreement during the
60-day insulated period. Further, the creation of the
60-day insulated period and the requirement that rival peti-
tions be on file prior thereto without regard to whether the
parties have forestalled automatic renewal will eliminate in
many cases the necessity of taking evidence and weighing the
actions of the parties with respect to their contract.
It is clear from the foregoing that the National Board created a
"window period" for the filing of election petitions to provide both
certainty and stability in the collective bargaining process--
certainty as to when such petitions should be filed for parties
interested in representing the employees, and stability to the
bargaining process where there had been confusion and uncertainty in
the past. The decision in Deluxe Metal does not support the proposi-
tion that an election should not be held during the so-called
"insulated period."
Also, contrary to AFSCME's suggestion, nowhere in Deluxe Metal is
there any support for the proposition that an agreement executed in
the "insulated period" by the incumbent agent and the employer will
obviate the need for an election even though a representation petition
has been timely filed during the "window period." To the contrary,
the filing of an election petition during the "window period" guaran-
tees that a representation election will be conducted. That is the
central thrust of Deluxe Metal and it is apparent that the statutory
"window period" found in our Act has the same policy footing as the
rule adopted by the National Board in that case.[fn]7 The fundamental
purpose of the rule is not to "insulate" the incumbent agent from the
need to endure an election test if a new agreement is reached in the
last 60 days of an existing agreement; rather, the purpose is to
prescribe a time certain for the filing of an insurgent petition,
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7 This Board has adopted the rationale of Deluxe Metal with respect
to the "contract bar" rule of Section 967(2). See Town of Jay,
Decision and Order on Objections to an Election (M.L.R.B., May 15,
1979), 1 NPER 20-10015.
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thus ensuring an election to determine the employees' desires. The
"window period" provides "insulation" for the incumbent in the final
60 days of an expiring agreement only if no petition has been filed
in the 60-90 day period provided therefor.
Furthermore, there simply is no valid reason to bar an election
during the "insulated period" if the election is held consistent with
the Election Rules and fair notice to the participants. It is better
to resolve the uncertainty over the question of representation as soon
as may fairly be done, rather than to delay the issue until a later
time.[fn]8 The assumption that AFSCME has made to the effect that
historically the National Board has refrained from holding an election
during the final weeks of an agreement is without foundation. In
Leonard Wholesale Meats[fn]9 that board reduced the 60-150 day "window
period," which it had adopted in Deluxe Metal, to the "60-90 day"
period it has since employed, and it is apparent from the decision
that it had been common for Regional Directors to hold an election
prior to the expiration date of an existing agreement. The labor
boards also commonly conduct representation elections prior to expira-
tion of agreements, in some instances much earlier than either the
National Board or the Maine Board.[fn]10
The argument that AFSCME makes concerning impairment of contract
is not well founded. It cites no case law or authorative commentary
to support the proposition. The fact is that the collective agreement
is not impaired at all; it continues in full vitality insofar as the
record in this matter indicates. The Act merely contains a process
for the opportunity to change the bargaining agent if the employees so
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8 In any event, as a practical matter, due to the timing of the
filing of the petition within the "window period" and other variables
associated with scheduling an election, in many instances an election
will be delayed until some time after expiration of the agreement.
9 Leonard Wholesale Meats, 136 NLRB No. 103, 49 LRRM 1901 (Apr.,
1962).
10 For example, New York state; see Civil Service Employees
Association v. Milowe, N.Y. Sup. Ct., App. Div., 101 LRRM 2184 (1979).
In that case the New York board entertained a petition filed 7 months
prior to the expiration of the agreement.
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desire. The provisions of the Act do not even suggest that the
underlying agreement will be otherwise affected. The duty to repre-
sent the employees pursuant to the terms of the agreement is deter-
mined by statute, 26 M.R.S.A. 967(2) (Pamph. 1987), and will fall
equally on one contender or the other, depending upon the employees'
expressed desires. Further, an incumbent union is by definition the
"agent" for the employees in the bargaining unit, and the employees
themselves as a group are the real party in interest. The Maine Act
and the National Board rule merely provide an orderly means for the
employees to seek a change of their "agent" for purposes of continued
representation.[fn]11 That is what hasoccurredd in the instant matter.
The employees voted to change the identity of the representative--
and there has been no impairment of the underlying agreement.
Finally, since collective bargaining and agreements engendered
thereunder are progeny of statute and are not constitutionally based,
presumably the Legislature could impose rational limitations on such
activity or resultant agreements without running afoul of
Constitutional prohibitions.[fn]12 In any event, no impairment has been
demonstrated in this matter.
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11 They may, of course, vote for "no representative" and thus ter-
minate the collective bargaining relationship as of the end of the
agreement. AFSCME assumes that the incumbent would have the con-
tinuing obligation to administer the agreement until its termination
if the employees voted "no representative." In the Old Orchard Beach
decision, which was a straight decertification, this Board found that
the former agent had that responsibility.
For a discussion of the continuing responsibilities owed by a
decertified union to the members of the unit, see Rochester School
Board v. PERB, New Hampshire Supreme Court, 101 LRRM 2l29 (1979).
12 Collective bargaining is not necessarily a common law right. See
Churchill v. S.A.D. #49 Teachers Association, 380 A.2d 186 (Me. 1977);
Lewiston Teachers Association v. Lewiston School Committee, MLRB No.
80-45, 2 NPER 20-11038 (Aug. 11, 1980).
Although claiming that there is a constitutional impairment of
contract in the Board's actions herein, AFSCME in its Reply Brief
nonetheless allows that, "The Legislature, creating the public
employees bargaining system, could presumably specify that an incum-
bent bargaining agent can be decertified prior to a contract's
expiration."
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For the reasons stated we find that AFSCME's appeal must be
denied.
ORDER
Based on the foregoing findings and discussions 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. 1987),
it is ORDERED:
That the objection to conduct by the Acting Executive
Director in scheduling an election for May 25, 1988, be and
hereby is DISMISSED.
Dated at Augusta, Maine this 19th day of September, 1988.
The parties are hereby MAINE LABOR RELATIONS BOARD
advised of their right,
pursuant to 26 M.R.S.A.
968(4) (Pamph. 1987),
to seek review of this /s/_________________________________
decision and order by William M. Houston
the Superior Court. Chairman
To initiate such a
review an appealing
party must both file a
complaint with the /s/_________________________________
Superior Court within Thacher E. Turner
fifteen (15) days of the Employer Representative
date of issuance hereof,
and otherwise comply with
the requirements of Rule
80B of the Maine Rules of /s/_________________________________
Civil Procedure. George W. Lambertson
Employee Representative
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