STATE OF MAINE MAINE LABOR RELATIONS BOARD No. 99-UD-04 Issued: November 30, 1998 ___________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) SEIU LOCAL 1989, ) ) Petitioner, ) ) and ) UNIT DETERMINATION REPORT ) MAINE JUDICIAL DEPARTMENT, ) ) Respondent. ) ___________________________________) INTRODUCTION This is a unit determination proceeding that was initiated on August 13, 1998, when Timothy L. Belcher, Esq., a representa- tive of the Maine State Employees Association, Local 1989, SEIU (the "Union"), filed a petition for unit determination with the Maine Labor Relations Board ("Board" or "MLRB"). The petition was filed pursuant to paragraph 4 of the Supreme Judicial Court, Administrative Order in Regard to Judicial Employees Labor Relations, SJC-128, (effective July 25, 1984), Me. Rep. 467-478 A.2d LXXXIX-XCIV ("Administrative Order") and pursuant to section 1286 of the Judicial Employees Labor Relations Act ("Act" or "JELRA"), 26 M.R.S.A. ch. 14. The Union's petition sought to create a bargaining unit composed of Financial Screeners or Financial Investigators. The Respondent Judicial Department ("Respondent") filed a motion to dismiss the petition on the grounds that the MLRB does not have jurisdiction over this matter. The Judicial Department was represented by Linda D. McGill and the Union was represented by Timothy L. Belcher. The parties were able to stipulate to the facts of the case and agree upon exhibits. The parties presented written briefs on the jurisdic- tional question, the last of which was received on November 6, 1998. As evidence beyond the stipulations was not necessary for -1- the disposition of this case and neither party requested oral argument, a hearing was not held. I conclude, for the reasons stated below, that the MLRB does not have jurisdiction over this matter and therefore I GRANT the Respondent's Motion to Dismiss the petition. STIPULATIONS The parties stipulated to the following facts: 1. The Maine Judicial Department is the public employer covered by the Maine Judicial Employees Labor Relations Act, 26 M.R.S.A. 1281-1294 (the "Act"). The Act is administered by the Maine Labor Relations Board ("MLRB"). 2. The Maine State Employees Association, SEIU Local 1989, ("MSEA") is a labor organization under that Act, and is the certified bargaining agent for certain employees of the Judicial Department. 3. On or about August 11, 1998, the MSEA filed a petition for Certification of Representative ("RC") with the National Labor Relations Board ("NLRB"), seeking certification as the bar- gaining agent for a unit of eight persons performing work as "Financial Screeners" or "Financial Investigators," ("Financial Screeners") and identifying the employer as Manpower, Inc. 4. The NLRB exercised jurisdiction over the RC petition, and is conducting a mail ballot election, with ballots to be counted on October 2, 1998, pursuant to a stipulated election agreement. 5. On or about August 13, 1998, MSEA filed a petition for Unit Determination ("UD") with the Maine Labor Relations Board, seeking certification as the bargaining agent for a unit of eight persons performing work as "Financial Screeners" or "Financial Investigators," ("Financial Screeners") and identifying the employer as the Maine Judicial Department. -2- 6. The Judicial Department challenged the MLRB's jurisdic- tion over that petition. 7. Manpower, Inc., has a contract with the Judicial Depart- ment for the provision of certain services, including the services provided by the Financial Screeners. The terms and conditions of employment for employees performing services under this contract are negotiated between the parties to that agreement. 8. The eight members of the proposed unit have worked in their current capacity for as long as six years. Financial screening services involve screening and processing criminal defendants' claims of indigence and requests for counsel. The work is performed in court offices. Equipment is provided by the Judicial Department. Costs of travel and other out-of-pocket expenses are paid by the Judicial Department through reimburse- ment to Manpower, Inc. 9. The members of the proposed unit are recruited, hired, trained, evaluated, disciplined, and otherwise supervised by the Judicial Department. The Judicial Department sets their hours, defines their responsibilities and performance standards, super- vises the quantity and quality of the work performed, and sets their terms and conditions of employment, except as described below. 10. Manpower issues paychecks to the individuals performing financial screening services, and Manpower is reimbursed by the Judicial Department for both the money paid to the individuals and an additional contract fee. Manpower provides workers' compensation insurance and a health insurance program, in which individuals performing financial screening may enroll at their own expense. 11. The eight current Financial Screeners deal with repre- sentatives of Manpower, Inc., on matters relating to payroll and insurance. -3- 12. If the Judicial Department is finally determined to be an employer of the Financial Screeners, pursuant to the Act, the Judicial Department stipulates that the proposed unit is an appropriate unit for collective bargaining. EXHIBITS The parties agreed to the admission of the following joint exhibits: Joint Exhibit #1 August 21, 1998 Letter from Acting Regional Director of National Labor Relations Board re Manpower, Inc., Case 1-RC-20882 Joint Exhibit #2 National Labor Relations Board Stipulated Election Agreement Approved August 21, 1988. Joint Exhibit #3 Request for Proposals, State of Maine - Judicial Branch Joint Exhibit #4 Administrative Office of the Court, Bid Return Form Submitted by Manpower Joint Exhibit #5 Contract for Special Services, Administrative Office of the Courts and Manpower Temporary Services, Approved Dec. 28, 1997 JURISDICTION My jurisdiction to decide this matter derives from para- graph 4 of the Supreme Judicial Court's Administrative Order in Regard to Judicial Employees Labor Relations and section 1286 of the Judicial Employees Labor Relations Act. See, Maine State Employees Association and State of Maine, Judicial Department, No. 98-UC-01, slip op. at 2-9 (Jan. 21, 1998). DISCUSSION In support of its Motion to Dismiss, the Respondent Judicial Department contends that doctrine of federal labor law pre-emption precludes the Board from exercising jurisdiction over the Union's petition. The Respondent points to fact that the National Labor Relations Board has already exercised jurisdiction over the -4- representation petition filed by the Union regarding the same Financial Screeners that are at issue here. The Respondent argues that the NLRB's jurisdiction is exclusive and that failure of the Board to dismiss this petition would be contrary to principles of federal pre-emption set forth in Garner v. Teamsters Local 776, 346 U.S. 485, 33 LRRM 2218 (1953). They contend that having two agencies with different substantive rules of law exercising jurisdiction over the same group of employees would create the very sort of conflict the doctrine of pre-emption is designed to avoid. Brief of Respondent Maine Judicial Department at 2. The Union argues that the National Labor Relations Board's decision in Management Training Corp., 317 NLRB 1355, 149 LRRM 1313 (1995), in which the NLRB changed its approach to jurisdic- tion over private employers who are closely aligned with govern- mental entities, permits the MLRB to exercise jurisdiction over the Union's petition. The Union argues that, using the right-to- control test, the Financial Screeners are employees of the Judicial Department and that the Financial Screeners are also employees of Manpower. Union's Brief at 3-7. They argue that, as joint employers, the Judicial Department and Manpower, Inc., are subject to the separate jurisdictions of the Maine Labor Relations Board and the National Labor Relations Board. The Union contends that the NLRB has only asserted jurisdiction over those aspects of Manpower's relations to the judicial screeners that are controlled by Manpower and that the MLRB is free to exercise its jurisdiction over the remaining aspects of employ- ment that are controlled by the Judicial Department. Union's Brief at 10-11. Contrary to the Union's assertion, the NLRB's Management Training decision does not affect the scope of jurisdiction the NLRB will exercise over a private employer when that employer has close ties to an exempt governmental entity. Management Training merely alters the method by which the NLRB determines whether or not it will exercise jurisdiction. 317 NLRB 1355, 149 LRRM 1313. -5- In Management Training, the employer managed a job corps center pursuant to a contract with the United States Department of Labor (DOL). The employer was required to submit with its contract proposal its staffing tables, wage ranges, and a description of its personnel policies regarding wage raises, compensatory time, overtime, holidays, sick leave, severance pay and benefits. Id. at 1314. The contract required the employer to submit any proposed changes regarding these matters to the DOL. Id. The issue presented was whether the NLRB should exercise jurisdiction over the employer when these conditions of employment were con- trolled by the DOL, an exempt governmental entity. Under the test first established in 1979 in National Trans- portation and later refined in Res-Care, Inc., the NLRB would examine both the employer's control over the essential terms and conditions of employment as well as "the scope and degree of control exercised by the exempt entity over the employer's labor relations." Id. at 1314, citing National Transportation, 240 NLRB 565, 100 LRRM 1263 (1979) and Res-Care, Inc., 280 NLRB 670, 122 LRRM 1265 (1986). The NLRB's goal in Res-Care was to ensure that it exercised jurisdiction over employers who not only met the definition of employer in Section 2(2) of the Act,[fn]1 but also those who retained sufficient control over the employment conditions of its employees to enable it to engage in "meaning- ful" collective bargaining. Res-Care, 122 LRRM at 1269. In the 1995 Management Training decision, the NLRB discarded any effort to assess an employer's ability to engage in "meaning- ful" bargaining when determining whether to exercise jurisdic- tion. The NLRB decided instead to inquire only as to whether the employer met both the definition of employer in the Act and the applicable monetary jurisdictional standards. Management Train- ____________________ 1 Section 2(2) of the National Labor Relations Act excludes from the definition of employer, among others, " . . . any State or political subdivision thereof." 29 U.S.C. 152(2). -6- ing, 149 LRRM at 1317. The Board described this change with: In retrospect, we think the emphasis in Res-Care on control of economic terms and conditions was an over-simplification of the bargaining process. While economic terms are certainly important aspects of the employment relationship, they are not the only subjects sought to be negotiated at the bargaining table. . . . It was shortsighted, therefore, for the Board to de- clare that bargaining is meaningless unless it includes the entire range of economic issues. . . . [In addition,] by requiring the employer to have control of economic terms before it would assert juris- diction, the Board seems to have made a judgment, either directly or indirectly, that not only were certain contract terms of higher priority than others, but that such terms must be a part of contract negotia- tions. This, we think, amounts to the Board's entrance into the substantive aspects of the bargaining process which is not permitted under the [Supreme Court] au- thority cited above. Id. at 1316. The NLRB held that it would be improper "to decide whether to assert jurisdiction based on the Board's assessment of the quality and/or quantity [of] factors available for negotiation." Id. at 1317. A simple rule of whether the employer met the definition of employer in the Act and whether the applicable monetary jurisdic- tional standards were met would address the policy considerations and reduce the likelihood of litigation. Id. In the present case, the Union's position on MLRB jurisdic- tion is based on its erroneous reading of Management Training. In its brief, the Union claims that Management Training's "dra- matic change of course is designed to ensure that contractors' employees retain the right to bargain over those limited issues under the contractor's control. Whatever authority Manpower retains as an employer is now clearly and completely within the jurisdiction of the NLRB." Union's Brief at 10. The Union's view is an inaccurate characterization of the rationale and -7- impact of the case. The stated purpose of the Management Train- ing decision was to reduce the potential for litigation and get the NLRB out of the business of deciding as a jurisdictional matter "which terms and conditions of employment are or are not essential to the bargaining process" and indirectly making judgments on the substantive terms of the contract. Id. at 1316. More importantly, there is nothing in Management Training to suggest that somehow the scope of the NLRB's jurisdiction is limited to those issues over which Manpower retains authority as an employer. Rather than establishing a limited jurisdiction (thereby leaving an opening for the MLRB as the Union argues), the NLRB specifically considered the problem encountered when the employer has contracted away some of its management rights: Our dissenting colleague asserts that there is an inconsistency in applying the Act's obligation to bar- gain in good faith to an employer who may hypothetically lack the ability to alter a particular mandatory subject of bargaining. We disagree. Because of commercial relationships with other parties, an inability to pay due to financial constraints, and competitive consider- ations which circumscribe the ability of the employer to grant particular demands, the fact is that employers are frequently confronted with demands concerning matters which they cannot control as a practical matter or because they have made a contractual relationship with private parties or public entities. . . . We find it unnecessary to consider specifically the circumstances under which the Board would or would not find that an employer had committed an unfair labor practice by failing to bargain over a matter asserted to be beyond the employer's control, as it is well settled that such issues are not relevant to the Board's juris- diction. . . . Thus, without question, an employer's voluntary decision to contract away some of its authori- ty over terms and conditions of employment should not be determinative of the Board's jurisdiction. Id. at 1317.[fn]2 ____________________ 2 Even the Management Training dissent notes that "[t]he Act does not, of course, provide for a limited Section 9 certifica- tion. A Section 9 certification gives a union the right to bargain about all mandatory terms and conditions of employment." Id. at 1319 (emphasis in original). -8- While the NLRB recognized that the dynamics of bargaining may be altered in the face of a government contract, the NLRB also noted that the situation of needing the approval of the contracting agency is not particularly unique. "Even if the Government rejects a negotiated wage increase and the employer has to fund the increase out of its own profits, . . . that burden is no greater than that carried by any contractor operat- ing under a cost-plus-fixed-fee contract." Id. at 1316. Clear- ly, the NLRB would not have made this comparison if it had intended to exercise jurisdiction only over limited issues. On the contrary, the NLRB expected that the employees themselves would consider the nature of the contract with the governmental entity on their way to the voting booth. The NLRB noted: . . . [The employer] must, by hypothesis, control some matters relating to the employment relationship, or else it would not be an employer under the Act. In our view, it is for the parties to determine whether bar- gaining is possible with respect to other matters and, in the final analysis, employee voters will decide for themselves whether they wish to engage in collective bargaining under those circumstances. Id. at 1317. Perhaps the most compelling argument against the MLRB exer- cising jurisdiction in this case is the fact that NLRA pre- emption is so extensive and well established. As a general rule, in the absence of an express pre-emption provision in the federal statute, state action will be pre-empted if it conflicts with federal law or frustrates the purpose of the federal law or if Congress intended to occupy the field. See, e.g., Building and Construction Trades Council v. Associated Builders and Contrac- tors of Mass./Rhode Island, 507 U.S. 218, 113 S.Ct. 1190 (1993) (State action as a proprietor is not subject to the same pre- emption analysis as state action as a regulator of conduct). With respect to the NLRA, the Supreme Court held in Garner v. Teamsters that even if Pennsylvania law provided an identical sub- stantive right, the State of Pennsylvania had no jurisdiction to -9- hear a case to enjoin picketing because that issue was within the jurisdiction of the NLRB. 346 U.S. 486, 74 S.Ct. 161 (1953). The Court noted, "when two separate remedies are brought to bear on the same activity, a conflict is imminent." Id. at 498-99. The Supreme Court has further defined NLRA pre-emption to preclude state regulation of those activities protected or prohibited by the NLRA, as well as those activities that are only arguably protected or prohibited by the NLRA. San Diego Building Trades Council v. Garmon, 359 U.S. 236, 79 S.Ct. 773 (1959) (California court did not have jurisdiction to award damages resulting from peaceful picketing). In addition, states may not regulate areas that Congress intended to be left unregulated, such as the parties' self-help activities. Machinists v. Wisconsin Employment Relations Commission, 427 U.S. 132, 96 S.Ct. 2548 (1976) (State could not declare unlawful a concerted refusal of union members to work overtime because Congress intended to leave such economic pressure unregulated by states). Management Training does not contain even a whisper of an intent to change the pre-emption doctrine by allowing state agen- cies to assert jurisdiction over areas protected or prohibited by the NLRA. It is mind-boggling to consider the complexities that would arise if the NLRB and the MLRB had concurrent jurisdiction over the same employees when the bounds of the jurisdiction would be dependent upon the terms of the contract between Manpower and the Judicial Department. Would the employers be expected to be at the table together? Would the dispute resolution procedures established under Maine law be required? What about self-help? Theoretically, different unions could be certified by the two agencies. What if both unions were trying to get its respective employer to gain "control" over the same mandatory subject of bargaining? Given the complexities involved, one would think that if the NLRB really intended to alter 50 years of pre-emption doctrine by allowing a state agency to exercise concurrent juris- -10- diction, they would have done so explicitly.[fn]3 In the present case, there is no question that the NLRB has already asserted jurisdiction over the Manpower employees working as Financial Screeners in the Judicial Department. In response to the Union's petition for Certification of Representation, the NLRB exercised jurisdiction and scheduled an election. There is nothing in the Stipulated Election Agreement nor in any other NLRB document in the record that suggests that the NLRB intended to limit the scope of its jurisdiction. In conjunction with its misreading of Management Training, the Union's position is dependent upon a conclusion that the Judicial Department is an employer of the Financial Screeners for those aspects of employment not controlled by Manpower. They argue that the pre-emption doctrine does not apply because the States are specifically exempt from the NLRB's jurisdiction by section 2(2) of the NLRA. I conclude that, because the NLRB took jurisdiction over the Financial Screeners, the doctrine of pre- emption applies and requires the dismissal of the Union's peti- tion. It is unnecessary, therefore, to consider whether the Judicial Department is an employer or joint employer of the Financial Screeners. ____________________ 3 The NLRA does explicitly permit the NLRB to decline or cede jurisdiction under two circumstances, neither of which applies here. Section 14(c) of the Act permits the NLRB to decline jurisdiction when the effect on commerce is insubstantial and, in such cases, States are permitted to assume jurisdiction. Section 10(a) allows the NLRB to cede jurisdiction to a State unless the applicable state statute is inconsistent with the federal Act. -11- ORDER On the basis of the foregoing stipulations and discussion, and pursuant to the authority granted by paragraph 4 of the Administrative Order and 26 M.R.S.A. 1286, the Respondent's Motion to Dismiss is GRANTED. Dated at Augusta, Maine, this 30th day of November, 1998. MAINE LABOR RELATIONS BOARD /s/________________________ Lisa Copenhaver Attorney Examiner The parties are hereby advised of their right to appeal this report to the Maine Labor Relations Board pursuant to 26 M.R.S.A. 1288(2) (Supp. 1997) and paragraph 6(2) of the Supreme Judicial Court, Administrative Order in Regard to Judicial Employees Labor Relations, SJC-128. 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. -12-