STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 98-EA-02 Issued: March 23, 1998 ______________________________ ) KEITH EMERY, ) ) Petitioner, ) ) INTERIM ORDER and ) ON ELECTION APPEAL ) TEAMSTERS UNION LOCAL 340, ) ) Bargaining Agent. ) ______________________________) This matter comes to the Maine Labor Relations Board (hereinafter "the Board") by way of a letter of appeal dated March 4, 1998, filed by Kenneth L. Eaton, Business Agent for Teamsters Union Local 340 ("the Teamsters"). The Teamsters challenge the determination of the executive director's designee that a decertification petition filed by Keith Emery on February 23, 1998, was properly filed. The Teamsters contend that the petition was improperly filed because it was not notarized prior to service on the Teamsters. A hearing was conducted by the Board on March 19, 1998. Present for the Board were Chair Peter T. Dawson, Employer Representative Karl Dornish, Jr., and Alternate Employee Representative Wayne W. Whitney. Appearing on behalf of the Teamsters was Kenneth L. Eaton; Keith Emery appeared on his own behalf. The Board deliberated the matter immediately after the hearing. For the reasons set forth herein the Board hereby GRANTS the Teamsters appeal. JURISDICTION The Board has jurisdiction to hear and decide this appeal pursuant to 26 M.R.S.A. 968(4) (1988 & Supp. 1997). Neither party has challenged the Board's jurisdiction. -1- FINDINGS OF FACT Upon review of the entire record of these proceedings the Maine Labor Relations Board finds the following facts: 1. Teamsters Union Local 340 is the bargaining agent for a unit of employees in the Town of Newport Police Department consisting of one sergeant and three patrolmen. Mr. Keith Emery is an employee in this unit. 2. On January 30, 1998, the Board received a petition submitted by another member of this unit seeking to decertify the Teamsters. By letter dated February 3, 1998, the executive director's designee notified the petitioner that the Board was unable to process his petition due to certain insufficiencies. A copy of this letter concerning insufficiencies was provided to the Teamsters to inform them of the status of that decertifi- cation petition, even though it was not clear whether they had received a copy of the petition. 3. On February 23, 1998, the Board received the decertifi- cation petition in question from Mr. Emery. Mr. Emery's petition was signed on February 11, 1998, served on the Teamsters on February 13, 1998, and then notarized on February 21, 1998. The petition received by the Board on February 23, 1998, had been notarized; the petition received by the Teamsters on February 13, 1998, had not been notarized. 4. The executive director's designee did not notice that the copy of the petition served on the Teamsters could not have been notarized prior to service. On March 2, 1998, she sent a letter to Mr. Emery, Mr. Eaton and the Interim Town Manager, advising them that the decertification petition had been filed and, consequently, a secret ballot decertification election had been scheduled. 5. By letter dated March 4, 1998, the Teamsters appealed -2- the decision to go forward with the decertification election and requested that the petition be dismissed on the basis that it was improperly filed. 6. By letter dated March 12, 1998, the executive director's designee notified Mr. Emery of the Teamsters' appeal and the hearing before the Board. Mr. Emery was also advised that he could cure the issue of this appeal by serving a copy of the notarized petition on the Teamsters. Mr. Emery had not served the notarized petition on the Teamsters as of the date of hearing. 7. Mr. Eaton testified that he noticed the petition served on him was not notarized and expected the Board, as it had in the case of the previous petition, would notify Mr. Emery that his petition was improperly filed. Mr. Eaton states that, because of his observation, he did not "act on" the petition (i.e., contact members to actively "educate and inform" them of the "pitfalls of decertification"). 8. Mr. Emery testified that the motive of the Teamsters for filing this appeal was to cause delay in the conduct of a decertification election with hopes that the delay would effect a favorable outcome for the union. DISCUSSION We are asked by the Teamsters to dismiss a petition for decertification election based on the failure of the petitioner to comply with the specific requirements for filing of a decerti- fication election petition. We agree with the Teamsters that the petition was improperly filed. Rule 2.01 of the Board's Rules and Procedures pertaining to decertification petitions reads, in part: A petition for decertification shall be in writing, -3- shall be signed before a notary public or justice of the peace and shall contain a declaration by the petitioner or petitioner's representative, under penalty of perjury, that its contents are true and correct to the best of the declarant's information and belief. The original and one copy of the petition shall be filed with the Maine Labor Relations Board (Board). The petitioner shall, prior to the filing of the petition with the Board, serve a copy of its petition upon the incumbent bargaining agent, the employer, and any organization which, to petitioner's information and belief, claims to represent any employees in the bargaining unit. The first section of Rule 2.01 specifies that a decertification election petition must be in writing and notarized. The remainder of the rule concerns service and filing of the previously referred to written and notarized petition. We interpret Rule 2.01 to require the petitioner to serve on the incumbent bargaining agent the same petition it intends to file with the Board, that is, the notarized petition. The purpose of Rule 2.01 is to impress upon the signer of a petition that he will be held accountable for the truth and accuracy of the contents of his petition. Cf. Teamsters Local Union No. 48 v. Town of Millinocket and Millinocket Police Association, No. 79-40, slip op. at 3 (Interim Order April 26, 1979)(purpose of Rule 4.02, which requires prohibited practice complaints to be notarized, is to evince an awareness on the part of the signer that he/she is responsible for the statements contained in the complaint). In light of the purpose of the Rule, the Board would not have accepted a petition which was not notarized. For this same reason, we do not believe an incumbent bargaining agent should be expected to act on a petition which is not notarized. Although Mr. Emery questions the motive of the Teamsters in filing this appeal, the petition was improperly filed. Whether or not the Teamsters were actually prejudiced by the improper filing in this case, we must be careful to enforce -4- the Rules and Procedures of the Board in every case. The Teamsters request as a remedy for this improper filing that the Board dismiss Mr. Emery's petition. We do not believe an immediate dismissal of the petition is necessary to redress this rule violation. Rather than dismiss Mr. Emery's petition, we will hold his petition in abeyance until we receive proof of service on the Teamsters of the (notarized) petition which was received by the Board on February 23, 1998. Once proof of service is received, the executive director's designee shall process the petition in accordance with the election rules. If the Board does not receive proof of service of the notarized petition on the Teamsters within fourteen (14) days of the date of issuance of this Interim Order, the pending decertification election petition shall be dismissed. -5- ORDER On the basis of the foregoing and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4) (1988 & Supp. 1997), it is ORDERED: That the appeal filed by the Teamsters is GRANTED. The decertification election petition filed with the Maine Labor Relations Board by Keith Emery on February 23, 1998, shall be held in abeyance pending receipt of proof of service of that petition on the Teamsters. If the Board does not receive proof of service of the February 23, 1998, petition within fourteen (14) days of the date of issuance of this interim order, the petition shall be dismissed. Dated at Augusta, Maine, this 23rd day of March, 1998. MAINE LABOR RELATIONS BOARD /s/______________________________ Peter T. Dawson Chair /s/______________________________ Karl Dornish, Jr. Employer Representative /s/______________________________ Wayne W. Whitney Alternate Employee Representative -6-