In Re Petition for Decertification of Federation of Nurses and 
Health Professionals / AFT, City of Bangor Nursing Facility, 98-E-01, 
Aug. 13, 1997 (contract bar issue) and Sept. 11, 1997 (remaining 
objections).  Appeal to Board ultimately withdrawn.


STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 98-E-01
                                      Issued:  August 13, 1997
         
         
         
_______________________________         
                               )
In Re:                         )
                               )        EXECUTIVE DIRECTOR'S
PETITION FOR DECERTIFICATION,  )             DECISION
BANCOR CITY NURSING FACILITY   )
_______________________________)
                       
         
         
                          INTRODUCTION
         
     On June 30, 1997, Ms. Mary Ellen Derouin submitted to the
Maine Labor Relations Board ("Board") a petition for an election
to decertify the Federation of Nurses and Health Professionals/
AFT (hereinafter referred to as "Union") as the certified
bargaining agent for the City of Bangor Nursing Facility
Employees' Bargaining Unit.  The petition was subsequently
amended and formally filed with the Board on August 5, 1997.        
         
     In a letter dated July 23, 1997, Mr. Ross Ferrell,
representing the Union, objected to the timeliness and
sufficiency of the petition on a number of grounds, including
that the filing of the petition was barred by the contract bar
rule in 26 M.R.S.A.  967(2).  I wrote to Mr. Ferrell on July 25,
1997, indicating that the contract bar issue would be addressed
as soon as the petition was formally filed and that the other
issues would be decided separately.  This decision represents my
administrative determination that the decertification petition is
not barred by the contract bar rule.[fn]1
____________________         
         
     1 This determination was originally issued in the form of a
letter dated August 13, 1997, addressed to the Union with a copy
provided to the petitioner.  The substance of that decision was
reformatted into the current form when it was appealed to the
Board.  It was reformatted in order to facilitate access to the
decision in electronic format.

                               -1-

                           JURISDICTION
         
     The jurisdiction of the executive director to decide this
matter lies in 26 M.R.S.A.  967(2) and Board Rule 2.06.
         
         
                            DISCUSSION
         
     The contract bar rule is contained in the statutory
provision governing bargaining agent elections.  The pertinent
portion of 26 M.R.S.A.  967(2) states:         

     Where there is a valid collective bargaining agreement
     in effect, no question concerning unit or representa-
     tion may be raised except during the period not more
     than 90 nor less than 60 days prior to the expiration
     date of the agreement.
         
         
     The Union contends that a valid collective bargaining
agreement is in effect thereby barring the filing of this
decertification petition.  The duration clause of the parties'
initial collective bargaining agreement provides that it is
effective February 26, 1996, through June 30, 1996.  The duration
clause goes on to say:
         
     In the event that the parties have not agreed to a
     successor agreement prior to the expiration date of the
     agreement, they agree that the present Agreement
     remains in effect until they have negotiated a new
     agreement.
         
The parties are currently negotiating a successor agreement.  The
Union's position is that this extension of the contract during
negotiations triggers the contract bar rule.
         
     The Maine Labor Relations Board directly addressed this
issue in the case Town of Jay and Teamsters Local Union No. 48
State, County, Municipal and University Workers, No. 78-A-11
(Me.L.R.B. May 15, 1979).  In that case, the collective
bargaining agreement's termination clause provided that the
contract remain in effect during the period of negotiations over
a new agreement.  The Board held that a decertification petition
         
                               -2-

may be filed even though the contract was extended during
negotiations.  The Board stated:
         
     It is a well-settled principle of law that the
     extension of an agreement pending modification of the
     agreement or negotiation and execution of a new
     agreement does not bar the filing of a decertification
     petition subsequent to the expiration date expressed in
     the agreement.  See, e.g., Metropolitan Life Insurance
     Co., 172 N.L.R.B. 1257 (1968); John Liber & Co., 123
     N.L.R.B. 1174, 1175 (1959); In re Petition for
     Decertification, Biddeford Police Department (Hearing
     Examiner's Decision)  (M.L.R.B., June 8, 1978).  Town of
     Jay at 5-6.
         
         
     The Board's policy on the contract-bar rule has not changed
since Town of Jay was decided in 1979.  I conclude that
Ms. Derouin's decertification petition in this case is not barred
by section 967(2).
         
         
Dated at Augusta, Maine, this 13th day of August, 1997.
         
         
                              MAINE LABOR RELATIONS BOARD
         
         
         
                              /s/_______________________________
                              Lisa Copenhaver
                              Designee of the Executive Director
         
     
      
The parties are hereby advised of their right, pursuant to
26 M.R.S.A.  968(4) (Supp. 1996), to appeal this report to the
Maine Labor Relations Board.  To initiate such an appeal, the
party seeking appellate review must file a notice of appeal with
the Board within fifteen (15) days of the date of issuance of
this report.  See Board Rules 1.12 and 7.03 for requirements.
                
                               -3-







STATE OF MAINE                        MAINE LABOR RELATIONS BOARD
                                      Case No. 98-E-01
                                      Issued:  September 11, 1997


_______________________________
                               )
In Re:                         )
                               )        EXECUTIVE DIRECTOR'S
PETITION FOR DECERTIFICATION,  )             DECISION
BANGOR CITY NURSING FACILITY   )
_______________________________)



                           INTRODUCTION
             
     A petition for an election to decertify the Federation of
Nurses and Health Professionals/AFT (hereinafter referred to as
"Union") as the certified bargaining agent for the City of Bangor
Nursing Facility Employees' Bargaining Unit was submitted to the
Maine Labor Relations Board ("Board") on June 30, 1997, by
Ms. Mary Ellen Derouin.  The petition was amended and formally
filed with the Board on August 5, 1997.  In letters dated
July 23, 1997, and August 16, 1997, Mr. Ross Ferrell, repre-
senting the Union, objected to the timeliness and sufficiency of
the petition on a number of grounds. In a decision issued on
August 13, 1997, I made the administrative determination that the
decertification petition was not barred by the contract bar rule,
a decision the Union formally appealed to the Board on Sept. 2,
1997.
     
     The decision below addresses the Union's remaining
objections; namely, that the decertification petition must be
served on a representative of the local; the petition does not
contain the required information on the bargaining unit; a copy
of the collective bargaining agreement that the petitioner
submitted to the Board was not supplied to the bargaining agent;
and the showing of interest is insufficient and not in compliance
with Rule 2.03 and Rule 1.06.    

                               -1-

                          JURISDICTION
                                    
     The jurisdiction of the executive director to decide this
matter lies in 26 M.R.S.A.  967(2) and Board Rule 2.03(B).

                           DISCUSSION
                                    
1.  CERTIFIED BARGAINING AGENT
     In the letter dated July 23, 1997, Mr. Ferrell contends that
the bargaining agent is the Federation of Nurses and Health
Professionals Local 5093 and that any formal notice must be
served on the Local and not him.  This objection is without
merit.  The bargaining agent certified by the Board is the
Federation of Nurses and Health Professionals/AFT, not Local
5093.  In any event, the better practice is to serve the
bargaining agent and not local union officials.  See Saco Valley
Teachers Assoc. and MSAD #6 Board of Directors, No. 85-07 and
85-09, slip op. at 12, 8 NPER ME-16013, (Me.L.R.B. Mar. 14,
1985).
 
2.  BARGAINING UNIT DESCRIPTION
     Rule 2.02(A)(3) requires that a petition for decertification
contain " . . . a description of the certified bargaining unit
involved and the approximate number of employees therein" and
section 6 of MLRB Form 2 reflects that requirement.  The Union
objects to the petition on the grounds that this required
information was not included on the petition for decertification.

     It is true that the petition filed August 5, 1997, does not
contain the description of the existing bargaining unit and the
estimated number of employees in that unit that is required by
Rule 2.02(A)(3).  The purpose of this rule in the context of a
decertification petition is to provide the Board with the infor-
mation necessary to determine whether the showing of interest in
support of the petition is adequate.  It also provides the
affected parties the opportunity to correct errors or omissions
in classifications listed as belonging in that unit so that the
basis for calculating the 30 percent requirement is correct. 

                               -2-

     In this case, the petition filed on August 5, 1997, was an
amended petition filed to correct problems with a petition
submitted on June 30, 1997.  That original petition did contain
the required information which the attorney examiner used to
review the showing of interest.  Although it is still unclear
whether Mr. Ferrell ever received a copy of the original
petition, Mr. Ferrell subsequently received a full list of
employees in the unit provided by the employer to the Board and
Mr. Ferrell at my request.  The reason this list was requested
was to permit a closer review of the showing of interest by the
Board and the bargaining agent.  Therefore, it is my conclusion
that any omission in providing the description of the bargaining
unit required by Rule 2.02(A)(3) is harmless error in the
circumstances.  The bargaining agent was in possession of a
complete list of eligible employees in the unit for the specific
purpose of determining whether the 30 percent showing of interest
requirement was met.  The Union had full opportunity to object to
the inclusion or omission of any position on that list.

3.  COPY OF COLLECTIVE BARGAINING AGREEMENT
     The Union also objects to the decertification petition on
the basis that the petitioner did not supply the bargaining agent
with a copy of the collective bargaining agreement that was
provided to the Board as part of the petition pursuant to Rule
2.02(A)(5).  Rule 2.02 describes the contents of the decertifi-
cation petition and Rule 2.01 requires, among other things, that
the petition be served upon the incumbent bargaining agent.  This
means the Union must be served with a copy of everything consid-
ered part of the petition.  

     In the present case, the petitioner submitted a copy of the
collective bargaining agreement to the Board after the MLRB
Form 2 was submitted but did not provide the Union with a copy. 
Mr. Ferrell supplied the Board with a copy of the agreement in
support of his argument that the contract bar rule prohibited the
filing of the decertification petition.  I reviewed the two

                               -3-

agreements and concluded that the petitioner and the Union
submitted the same agreement.  Furthermore, there has only been
one collective bargaining agreement signed by the parties.  It is
not a case where the petitioner could have provided a copy of the
wrong agreement.  I cannot now conclude that any party was harmed
by the failure of the petitioner to serve a copy of the agreement
upon the incumbent union in the circumstances.         

4.  SHOWING OF INTEREST
     The final issue raised by the Union is whether the showing
of interest is sufficient and valid.  Although I am finding that
the showing of interest forms comply with Rule 2.03 and Rule
1.06, I have reason to believe that the signatures were not
collected in compliance with the underlying spirit of the rules. 
I will go into extensive detail below to describe the evidence
because the actual showing of interest forms must remain
confidential and may not be reviewed by the parties now or upon
appeal.  Teamsters Local #340 and City of Brewer, No. 77-A-06,
(Me.L.R.B. Sept. 19, 1977).  If this decision is appealed to the
Board, the Board may hold a full evidentiary hearing but any
review of the showing of interest documents may only be performed
by the Board in private.

     In the letter dated July 23, 1997, the Union specifically
asked if the Board determined whether any of the employees had
been employed less than six months and if the showing of interest
complied with Rule 1.06.  In the letter dated August 16, 1997,
the Union raised the question of whether the showing of interest
complied with Rule 2.03 and Rule 1.06 and went on to note:

     [Rule 2.03 requires] the evidence of showing of
     interest "shall consist of original separate documents,
     with a separate document being signed by each
     individual . . . employee."  This is more than a
     procedural matter.  The Board has determined that there
     must be separate authorization forms to preserve
     privacy and reduce undue duress on the potential
     signers.  Do the forms submitted by the petitioner
     contain a signature, printed name and a hand written
     date?  Does each separate document contain a separate

                               -4-

     statement that each person no longer desires represen-
     tation?  What is the specific wording in the documents
     submitted for decertification?

Union letter dated 8/16/97 at 4.
  
     In response to the Union's letter of July 23, 1997, I
requested the employer to provide a complete list of employees in
the unit as of August 5, 1997, and copies of their signatures in
order to more closely examine the sufficiency of the showing of
interest.  At my direction, a copy of the requested information
was provided to the Union by the employer and the Union was given
the opportunity to comment on that information. 
     
     Using the uncontested list provided by the employer, I
counted the number of public employees in the unit and the number
of public employees signing showing of interest forms and
calculated that the 30 percent threshold was met.  No employees
with less than six months of service on August 5, 1997, were
counted.
     
     Rule 1.06 and Rule 2.03 require that the evidence of the
showing of interest be in the form of separate documents with
each document containing the signature of the employee, the
handwritten date of signing, the printed or typewritten name of
the employee signing, and a statement that the employee no longer
wishes to be represented by the incumbent bargaining agent.  

     In this case, the evidence submitted of the showing of
interest consisted of separate documents containing all of the
requisite information.  Each document contained the identical
information (other than the name and date) and looked like this:

                               -5-

        SHOWING OF INTEREST CARD FOR DECERTIFICATION OF BARGAINING AGENT


I, ______________________________________, employee of Bangor City Nursing Facility; City of Bangor,
                    (print or type name)

no longer wish to be represented by Federation of Nurses and Health Professionals, FNHP/AFT, AFL-CIO,


Local #5093, for the purposes of collective bargaining.


Date:  ____________________________                        __________________________________________
          (must be handwritten by                                         (signature)
           person signing card)


_________________________________________________________________________________________________


     Based on a close review of the showing of interest documents
and the employer-provided information, I have concluded that the
30 percent threshold is met and that the showing of interest
otherwise complies with Rule 2.03 and Rule 1.06.  Each document
contained the requisite declaration, signature, handwritten date,
and printed name.  All of the employees signing these documents
were public employees in the unit as of the date of the petition
and their signatures correspond to signatures provided by the
employer.  The authenticity of the showing of interest documents
is not at issue.  Union letter dated 8/16/97 at 1.     

     There is a problem as to whether the documents the employees
signed were separate documents at the time they were signed. 
Based on the size of the documents and their appearance when
submitted to the Board, I have concluded that the documents were
not separate documents when they were signed by the employees.  
     
     The documents submitted to the Board, as depicted above,
were each 8 1/2" wide and about 3 1/2" high.  While the width of
each document was constant, the height of the documents varied
somewhat.  The right side ranged from 3 3/8" to 3 3/4" in height

                               -6-

and the left side ranged from 3 1/2" to 3 3/4".  None of the
forms were perfect rectangles, that is, none had four right-
angled corners.  The solid line at the bottom of the form was
fully visible on some of the forms, only partially visible on
others, and not present at all on others. The physical appearance
of these forms is consistent with what would occur if one were to
type the above showing of interest language three times on an
8 1/2" by 11" piece of paper, separate them with two solid lines
across the paper, photocopy that one piece of paper to make
multiple copies, and then cut a stack or stacks of the full
sheets into thirds with a paper cutter.  This is not surprising
and is probably the quickest and most cost-effective way of
making multiple copies of a form on non-standard sized paper.
     
     Assuming this is what happened, an important question is
whether the documents were signed before or after they were cut
into strips.  As received by the Board, the showing of interest
forms were in a stack consisting of a bunch of forms of nearly
identical size, followed by another bunch of a different size but
nearly identical to one another, followed by another bunch and so
on.  The length of the solid line and whether it was visible on
the right or left side was also a feature noticeable in the same
groups.  This grouping of forms is consistent with how they would
be arranged after cutting the strips in a less than perfect
fashion on a paper cutter.  It is possible that the strips were
cut, distributed to employees, signed by the employee, returned
to the petitioner and sent to the Board without disturbing this
order.  It is much more probable, in my view, that the forms were
not cut until after they had been signed.  If that is the case,
the showing of interest forms were not separate documents, as
required by Rule 2.03, at the time they were signed even though
they were separate documents when they were submitted to the
Board.

     The requirement of Rule 2.03(B) and 1.06(C) that the showing
of interest evidence be submitted on separate documents was added

                               -7-

in 1990.  The Board's explanation of the change was "to avoid the
potential for undue pressure on employees being asked to sign
something that already contains the name and signature space for
each employee.  The potential for undue pressure is less if
individual documents are offered for signature."  Proposed
Amendments to Rules and Procedures of the Maine Labor Relations
Board, Explanation of Changes in Chapter 1. 1990.  The impetus
for this change appears to be a prohibited practice complaint
following a successful decertification election in which the
validity of the showing of interest was one of the issues heard
by the Board.  The Board stated:
     
     The Union's first allegation is that the Employee
     violated  964(2)(A) by pretyping the names of
     bargaining unit employees on the showing of interest in
     support of petition for decertification election.  In
     our view, the typing of the names of bargaining unit
     employees on a showing of interest which is in the form
     of a listing of employees, prior to the signing of said
     showing by the employees, may well be subtly coercive. 
     Generally speaking, we disapprove of the practice as a
     matter of policy.2  In the circumstances of this case,
     however, we hold that the pretyping of the employees'
     names was not unlawfully coercive because it occurred
     on the second showing of interest and the employees
     whose names were pretyped had already signed the first
     showing which did not contain pretyped names.
     _______________

          2The use of separate cards signed by the unit employees is a
     preferable practice.

AFSCME, Council 93 v. Maynard, et al., Nos. 86-22, 86-25 and
86-A-03, slip op. at 15-16, 9 NPER ME-18014 (Me.L.R.B. March 10,
1987).  The Board's discussion in the Maynard case and the
explanation of the amendment to the rule suggest that there was
never a per se rule that any time there was more than more than
one name on a form, there was necessarily coercion and the forms
were invalid.  Thus, the underlying purpose of this aspect of
Rule 2.03 does not compel a dismissal of the decertification of
this petition even though I have concluded that the showing of
interest forms were not separate documents when they were signed.

                               -8-

     Similarly, the underlying purpose of the requirement of a
30 percent showing of interest before an election will be
scheduled does not compel a dismissal of the petition in this
case.  In a previous decertification case involving a variety of
challenges to the showing of interest, the Board considered the
purpose of requiring a showing of interest in making its
determination:

     The purpose of the showing of interest requirement is,
     not to show that a union represents a clear and
     unambiguous majority of the employees, but merely "to
     determine whether there is a demonstration of enough
     genuine employee interest in a union to justify the
     expenditure of agency resources for an election." 
     Quick Find Co., 259 NLRB 1051, 1062 (1982).

Council No. 74, AFSCME and Maine State Employees Association, et
al., No. 84-A-01, slip op. at 7, 6 NPER 20-14037, Interlocutory
Decision and Order (Me.L.R.B. Aug. 24, 1983).  

     Given the fact that the showing of interest forms submitted
to the Board were separate sheets when they were submitted and
were technically in compliance with Rule 2.03, I am making an
administrative decision pursuant to Rule 2.03(B) that the showing
of interest forms comply with all of the requirements of Rule
2.03(A) and Rule 1.06. 
     
                             SUMMARY
                                    
     The fact that the decertification petition filed on
August 5, 1997, did not contain a description of the unit
involved is, at most, harmless error that does not justify
dismissal of the petition.  Similarly, the failure to serve upon
the Union a copy of the collective bargaining agreement does not
affect the sufficiency of the petition in this case.  The
evidence of a 30 percent showing of interest was sufficient and
met all of the requirements of Rule 2.03 and Rule 1.06.
     
     As previously noted, my decision issued on August 13, 1997,
on the contract bar issue has been appealed to the Board.  The

                               -9-

outcome of that appeal affects the jurisdiction of the Board to
go forward with a decertification election.  Consequently, an
election will not be scheduled at this time.  If the decision
issued today is appealed to the Board, it will be heard at the
same time as the contract bar issue.

Dated at Augusta, Maine, this 11th day of September, 1997.

                              MAINE LABOR RELATIONS BOARD



                              /s/_______________________________
                              Lisa Copenhaver
                              Designee of the Executive Director


The parties are hereby advised of their right, pursuant to
26 M.R.S.A.  968(4) (Supp. 1996), to appeal this report to the
Maine Labor Relations Board.  To initiate such an appeal, the
party seeking appellate review must file a notice of appeal with
the Board within fifteen (15) days of the date of issuance of
this report.  See Board Rules 1.12 and 7.03 for requirements.

                              -10-