Council 74 AFSCME v. City of Augusta and MLRB, No. CV-81-477, affirming Board decision no. 81-A-03, modifying 81-UD-20. STATE OF MAINE SUPERIOR COURT KENNEBEC, SS CIVIL ACTION Docket No. CV81-477 COUNCIL NO. 74, AMERICAN ) FEDERATION OF STATE, ) COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO, ) ) Plaintiff ) ) v. ) ) OPINION AND ORDER CITY OF AUGUSTA ) ) and ) ) THE MAINE LABOR RELATIONS BOARD, ) ) Defendant ) This matter is before the Court on appeal by the plaintiff, Council No. 74, American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) from a determination by the Maine Labor Relations Board (MLRB) that the employer, City of Augusta, had standing pursuant to 26 M.R.S.A. 967(2) to file a petition for election to test the validity of the plaintiff union's continued majority status as a representative of the "Augusta City Hall employees'" bargaining unit. The facts are not in serious dispute. In April of 1970 the Department of Labor and Industry, predecessor to the MLRB, issued a report establishing a bargaining unit composed of certain clerical workers employed by the City of Augusta. On May 27, 1970, a representative election was held for this clerical employees' bargaining unit. AFSCME was selected as a collective bargaining representative as a result of this election. After this election, the union did virtually nothing for the employees in this bargaining [-1-] _____________________________________________________________________ unit for more than ten years. Little, if any, collective bargaining took place between AFSCME and the city, despite the union's certification as bargaining agent. There were no collective bargaining agreements consummated, and the union did not assist members of this bargaining unit in grievance proceedings or otherwise represent the employees during the 1970's. In the summer of 1980, AFSCME apparently discovered this bargaining unit, and on August 29, 1980, sent a letter to the City Manager requesting negotiations on a contract for the clerical employees' bargaining unit. In response the city challenged the union's status as a proper bargaining representative of the clerical employees. Instead of directly responding to this challenge, the union, in November of 1980, sent another letter to the city requesting that the city negotiate with it as the bargaining agent. After receipt of the second letter the city, on November 18, 1980 filed with the MLRB a petition seeking an election of a bargaining agent for the City Hall employees and for "reaffirmation of bargaining unit." AFSCME moved to dismiss this petition on the grounds that the city, as an employer, lacked standing to petition for an election in a bargaining unit already represented by a certified bargaining agent. The case was initially presented before a hearing examiner at the MLRB. The union refused to participate in the hearing examiner proceeding, apparently to protect what is perceived as its legal position. After conducting a hearing, apparently with participation principally by the city as the employer, the hearing examiner ruled that the bargaining unit no longer existed and that it was not necessary for him to act on the city's petition for -2- _____________________________________________________________________ an election. Despite its refusal to participate in the proceeding at the hearing examiner level, the AFSCME filed a timely appeal to the full MLRB. There may be a serious question as to whether the union's refusal to participate in the proceeding before the hearing examiner denied it standing to appeal the decision of the hearing examiner to the full MLRB. Because the MLRB has primary jurisdiction to interpret its rules, including its rules of standing for appeal to the full MLRB, this Court will assume, for the purposes of this proceeding, that the MLRB determined that the union had standing to appeal the hearing examiner's decision, despite the union's failure to participate in the hearing examiner proceeding. This Court must independently examine questions of standing, even if not raised by the parties, Walsh v. City of Brewer, Me. 315 A.2d 200 (1974). However, as the union was given standing to appeal the hearing examiner's decision before the full MLRB, this Court, in this proceeding, will look only to the union's unquestioned standing to appeal the decision of the MLRB to this Court. The Court will not go behind the implicit determination by the MLRLB that the union had standing to appeal from the hearing examiner to the Board. However, the Court must note that the union took a considerable legal risk in its refusal to participate before the hearing examiner once it was clear that the city's petition for election was not going to be summarily dismissed as it had requested. On appeal, the full MLRB upheld the determination of the hearing examiner that the city had standing to file the petition for -3- _____________________________________________________________________ election. It reversed the determination that the clerical unit was no longer viable. Instead, it remanded the case to the MLRB staff to (1) conduct unit determination procedures and then (2) conduct a representation election for the unit. The union has appealed from that decision to this Court. The basic issue in this case is whether the provisions of the Public Employees' Labor Relations Act, and specifically 26 M.R.S.A. 967(2) give the city standing to seek a representation election for a bargaining unit where a bargaining agent has already been designated for that unit. 26 M.R.S.A. 967(2) provides, in part: The executive director of the board, or his designee, upon signed request of a public employer alleging that one or more public employees or public employee organizations have presented to it a claim to be recognized as the representative of a bargaining unit of public employees, or upon signed petition of at least 30% of a bargaining unit of public employees that they desire to be represented by an organization, shall conduct a secret ballot election to determine whether the organization represents a majority of the members of the bargaining unit. . . . . . No question concerning representation may be raised within one year of a certification or attempted certification. Where there is a valid collective bargaining agreement in effect, no question concerning 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. The not more than 90-day nor less than 60-day period prior to the expiration date of an agreement regarding unit determination and representation shall not apply to matters of unit clarification. This statute specifically authorizes the public employer to petition for an election when a public employee organization has presented a claim to be recognized as a representative of a bargaining unit. No where does the statute suggest that this request can only be presented once, by the public employer, before -4- _____________________________________________________________________ the first bargaining unit designation. The statute would appear to authorize, and certainly cannot be read to preclude, the employer's standing to request an election where a bargaining agent presents a claim for continued recognition on the facts of this case, where the claim is presented after ten years of complete abdication of collective bargaining responsibilities during which time significant changes have occurred to the composition of the previously designated bargaining unit. Accordingly, the Court believes that the Board's determination that the city employer had standing to petition for an election of the City Hall employees' bargaining unit is correct. The Court has reviewed the authority cited by the parties. In the Court's view, the examination of the authorities stated in the opinion of the MLRB represents an accurate statement of the law. Nothing would be gained by simple repetition of the careful analysis by the MLRB in this decision. The findings of fact stated by the MLRB are supported by the evidence in the record, and the MLRB made no errors in their determinations as to the law based on the facts they found. The Court recognizes the concern expressed by the AFSCME that a holding that public employers have general authority to secure representation elections once a year could be used by irresponsible public employers to improperly harass collective bargaining agents. This Court's holding, affirming the view of the MLRB, is not so broad. In this case there was no collective bargaining agreement in effect, no collective bargaining or representation activity had occurred for ten years, and the MLRB found that organization and -5- _____________________________________________________________________ personnel changes had drastically altered the previous bargaining unit. On such facts, the MLRB was amply justified in allowing the city to petition for and secure a new election. The issue of whether a public employer has a right to annual representation elections on request, when dealing with an active bargaining agent, where a collective bargaining agreement is in effect, must await another case and another day for determination. Accordingly, the decision and order of the MLRB in this case will be affirmed. Therefore, the Court ORDERS and the entry shall be: 1. Plaintiff's complaint for review of the decision and order of the Maine Labor Relations Board is DENIED. 2. The order of the Maine Labor Relations Board is AFFIRMED. Dated: March 30, 1982 /s/__________________________ Donald G. Alexander Justice, Superior Court -6- _____________________________________________________________________