FAQ's : Frequently Asked Questions

1. What does the Maine Labor Relations Board do?

The Maine Labor Relations Board (the MLRB or the Board) administers and enforces the laws that give public sector employees collective bargaining rights. There are four separate statutes that do this in a similar manner for four groups of public sector employees. The Municipal Public Employees Labor Relations Law covers employees of municipalities, school districts, counties, special purpose districts such as water and sewer, the Maine Turnpike Authority, the Maine Public Employees Retirement System, and the Maine Educational Center for the Deaf and Hard of Hearing and the Governor Baxter School for the Deaf. The State Employees Labor Relations Act covers employees of the executive and legislative branches of the State of Maine. The Judicial Employees Labor Relations Act covers employees of the judicial branch of the State of Maine. The University of Maine System Labor Relations Act covers employees of the University of Maine System, the Maine Community College System and the Maine Maritime Academy. The Maine Labor Relations Board staff decides which positions should be in a particular bargaining unit based on evidence submitted, conducts elections to certify, change, or decertify a union as a bargaining agent, and arranges for mediation, fact finding and interest arbitration when needed. The Board members conduct evidentiary hearings and decide whether there has been a violation of the law.

2. What do Maine's collective bargaining laws say?

These laws give most public sector employees the right to: 1) form, join, or participate in the activities of unions, 2) bargain collectively over terms and conditions of employment, and 3) refrain from participating in any or all of these activities. These laws require public employers to bargain in good faith with the certified bargaining representative of the employees and prohibit the employer or the union from interfering with employees in the exercise of their rights. There are links to the collective bargaining statutes in the header near the top of this page.

3. What does the MLRB NOT do?

The MLRB does NOT investigate allegations of race, gender, age, sexual orientation or religious discrimination. These types of issues are handled by the Maine Human Rights Commission, which also handles discrimination issues related to disability and enforces Maine's Whistleblower protection laws. Their website is http://www.maine.gov/mhrc/ and their phone number is (207) 624-6290. The MLRB does NOT handle disputes about pay and overtime, except in very limited circumstances. Pay issues are handled by the Wage and Hour Division of Maine's Department of Labor. Their website is http://www.maine.gov/labor/bls/index.shtml and their phone number is (207) 623-7900. If the wage dispute is because of discrimination based on union activity, however, the MLRB should be contacted. Some pay and overtime issues are covered by a collective bargaining agreement. If you work in a job that is represented by a union, you should contact your union steward about the pay problem. The MLRB does NOT enforce collective bargaining agreements. Most collective bargaining agreements are enforced through a grievance procedure the parties have negotiated. If a party repudiates the collective bargaining agreement, that is, it refuses to honor that agreement at all, that party may be violating the law and the MLRB would address the matter.

FREQUENTLY ASKED QUESTIONS ABOUT UNION REPRESENTATION AND BARGAINING UNITS

4. How does a union become the representative of employees for collective bargaining?

A bargaining unit must first be established so that everyone knows which positions are in the unit and who is eligible to vote if there is an election. Once the bargaining unit is created, the employer either voluntarily recognizes the union or there is an election to decide whether the employees want to be represented by a particular union.

5. What is a bargaining unit?

A bargaining unit is a grouping of employee classifications for collective bargaining purposes. When the Employer and the Union sit down to negotiate a collective bargaining agreement, they bargain over the terms and conditions of employment for the employees in the positions that are in the bargaining unit.

6. How is the bargaining unit created?

The union and the employer may agree on which positions should be in the unit. When they do, they should submit an Agreement on an Appropriate Unit (MLRB Form 1) to the Board. If they cannot agree, a unit determination petition must be filed describing the proposed bargaining unit and including evidence that at least 30% of the employees in the unit want to create a bargaining unit. A member of the MLRB staff will conduct a hearing to determine whether the positions in the proposed unit are an appropriate unit.

7. What is an “appropriate” bargaining unit?

An appropriate bargaining unit is one where the unit classifications share a community of interest, which is kind of the opposite of “conflict of interest.” The basic question addressed in a unit determination hearing is whether the positions share a "community of interest." The specific criteria used in deciding whether the unit is an "appropriate unit" are listed in the MLRB's Rules and Procedures, Chapter 11, section 22. With respect to higher education in Maine, bargaining units are established by specific statutory language in the University of Maine System Labor Relations Act.

8. Do employees get to vote on what bargaining unit they are included in?

Generally, no. Employees get to vote on whether they wish to be represented by a union, but not which bargaining unit they are put in. There are specific election provisions regarding units containing both professional and nonprofessional employees under the Municipal Act, and special election provisions for unit mergers under the Municipal Act as well as unit mergers under the School Reorganization Act.

9. Can all types of jobs be in a bargaining unit?

No. Some positions are excluded by statute. For example, temporary positions are excluded and elected officials are excluded. Each of the collective bargaining statutes is different in this respect. When an MLRB staff member conducts a unit determination hearing, one issue often addressed is whether a particular position must be excluded from the unit because of these statutory exclusions.

10. Can supervisors be in a bargaining unit?

Under Maine's laws, supervisors are granted the same rights as other employees. The Board will generally try to avoid placing a supervisor in the same bargaining unit as the positions the person supervises.

11. Do I have to be a part of a bargaining unit?

If your position is in the bargaining unit, you do not have a choice about being in the bargaining unit and being covered by whatever collective bargaining agreement is negotiated. However, you do not have to be a member of the union, which is different than being a member of the bargaining unit. The bargaining agent (often called a union or an association) must represent all employees in the bargaining unit, even if they are not members of the union or association. This is called the duty of fair representation, which prohibits the union from being arbitrary, discriminatory or acting in bad faith while representing employees in the bargaining unit.

12. Can an established bargaining unit have positions added to it or removed from it?

Yes. A unit clarification petition may be filed by either the employer or the union representing the unit if they are unable to agree upon a unit modification. An individual employee may not file a unit clarification petition. There are certain requirements unique to unit clarification petitions that are contained in the MLRB Rules, Chapter 11, section 6(3).

13. What if we think our position or a group of positions should be removed from an existing unit to make a separate bargaining unit?

If the bargaining agent and the employer agree to sever one bargaining unit into two separate bargaining units, they can file a unit agreement with the MLRB to accomplish that. If they do not agree, a severance petition must be filed, which is a type of unit determination petition. You should call the MLRB office for advice on how to proceed with this type of request.

BARGAINING AGENTS

14. What is a bargaining agent?

A bargaining agent is an organization, an individual, or an association that represents employees in their employment relations with employers and is the choice of the majority of the unit as their representative.

15. How does a union become a bargaining agent?

Sometimes an employer will acknowledge that a union has the support of a majority of the employees in the bargaining unit and the employer will voluntarily recognize the union as the exclusive bargaining agent for the unit. If the employer does not recognize the union voluntarily, the union can request the MLRB to conduct a secret ballot election to determine the desires of the employees.

16. Does a bargaining agent have to be part of a larger state or national union?

No. There are no requirements in Maine's statutes regarding the formation of a union or its governance. A local association, consisting of only the employees in a bargaining unit, can become a bargaining agent.

17. How is a request for an election processed?

A request for an election starts by submitting a petition to the MLRB. A petition is a formal request made on an MLRB Form. When someone submits a petition for an election, it must be accompanied by a "showing of interest" from at least 30% of the total number of employees in the bargaining unit. A showing of interest can be a union membership card or a form signed by an employee saying that the employee wants to be represented by a particular union. It should not be a list of signatures on a single document. If everything is in order, the MLRB will work with the employer and the union to create a complete and accurate voting list and the ballots are mailed to each employee in the bargaining unit. The options on the ballot will be to be represented by the union that petitioned for the election, by any other union that had enough support to be placed on the ballot, or "no representative".

18. Will my employer or anyone else know how I voted?

No. It is a secret ballot election. The employee votes at home and puts the ballot in an unmarked envelope supplied by the MLRB. That envelope is placed in another envelope that is mailed to the MLRB. When the votes are counted, the inside envelope has been separated from the outer envelope so there is no way to track who voted which way.

19. Who wins?

A majority of the valid votes cast determines the outcome of the election. This is the same rule that applies to regular town or state elections. If a majority of the valid votes cast opt to be represented for purposes of collective bargaining by a union identified on the ballot, that particular union will be certified as the exclusive bargaining agent for that bargaining unit.

20. What if I don’t vote?

Since the outcome of the vote is based on a majority of those voting, failure to vote means that fewer votes will be required to achieve a majority.

21. What if the election results in a tie vote?

In elections involving only one employee organization, a tie between representation by that organization and “no representative” results in no representative. An employee organization must always receive a majority of the valid votes cast to become or remain the bargaining agent. If more than one union is listed on the ballot and none of the choices wins a majority of the votes cast (including the choice of "no representative"), a runoff election would be held between the top two vote-getters in the initial election.

22. Can a union be removed as a bargaining agent? Can a new union be elected in its place?

Yes, by a majority vote through a decertification election conducted by the MLRB. Like other election petitions, a petition to decertify a union or a petition to decertify a union and certify another union must be accompanied by a 30% showing of interest. A decertification petition cannot be filed in the first 12 months after a union is certified as the bargaining agent. If there is a collective bargaining agreement in effect, the petition to decertify the union can only be filed in the window period beginning 90 days and ending 60 days prior to the expiration of that contract, or after the contract has expired if no successor contract has been ratified.

23. Where can I get more details?

Chapter 11 of the MLRB Rules and Procedures provides much more detail on representation issues. You can download a copy of this chapter from the MLRB's website. Or you can call the MLRB Office and ask that a hard copy of the rules be sent to you, along with any forms you might need. The Board's phone number is (207) 287-2015.

QUESTIONS ABOUT PROHIBITED PRACTICE COMPLAINTS

24. What is a prohibited practice complaint?

A prohibited practice complaint is an official document filed with the MLRB that charges the employer, the union or a person with doing something specific that is listed in the collective bargaining statute as a prohibited act.

25. What are the most common types of prohibited practice complaints?

The most common types of complaints against an employer are: refusal to bargain about mandatory subjects of bargaining, discriminating or retaliating against someone for union activity, or interfering with the rights protected by the Act. The most common types of complaints filed against unions are refusal to bargain about mandatory subjects of bargaining, failing to represent a member of the unit fairly due to that person's union activity or lack of involvement in the union, or otherwise interfering with an employee's rights under the Act.

26. Why does everyone call it a PPC?

It is a lot easier to say.

27. What are the requirements for filing a PPC?

Among the things the complaint must contain are: a concise statement of facts including the date and place of occurrence of each particular act the complainant thinks violated the Act, the names of persons involved, and the sections and subsections of the Act alleged to have been violated. The complaint must be signed before a notary public and must contain a declaration by the person signing, under penalty of perjury, that its contents are true to the best of that person's knowledge. If there is a collective bargaining agreement (either still in effect or a recent one) it must be included with the complaint. See the MLRB Rules, Chapter 12, section 5, for everything that must be included in a complaint. It is best to provide the information on the MLRB Form designed for that purpose, although using the form is not required.

28. Do I include documents or sworn statements with the complaint?

Relevant documents (referred to as “Exhibits”) and sworn statements (“affidavits”) should not be included with the complaint. The complaint and the concise statement of facts need to stand on their own. Evidence in the form of documents will need to be produced later on at the pre-hearing conference.

29. Do I need to provide the other party with a copy of the complaint?

You must provide a copy of the complaint, including the collective bargaining agreement to the party against whom the charge is made, before the complaint is sent to the Board. This is a basic requirement under the Act.

30. Do I need to be able to prove the other party got the complaint and when they received it?

Yes. Upon request by the Board, you must be able to prove that the complaint was provided to the other party and the date they received the complaint. Most people send the complaint to the other party by Certified Mail, Return Receipt Requested, and the Postal Service will provide proof that it was actually received by the other party. Another way to prove such delivery is to have the other party sign a receipt, showing they received the complaint and the date of receipt.

31. Does it cost anything to file a complaint with the MLRB?

No and yes. There is no filing fee for submitting a PPC like there is to file a case in court. You should know, however, that there will be costs incurred along the way, such as copying costs and per diem rates and travel expenses for the Board members. For example, you have to send a copy of the complaint to the other party as well as any other material you file with the MLRB about your case. Also, at the prehearing conference, you will be required to supply an additional three copies of the complaint and the collective bargaining agreement for your bargaining unit. You will also have to bring to the prehearing conference five copies of each document you want to submit as evidence at your hearing. If your case does go to hearing (some cases settle before that time), you will have to pay half the amount of estimated per diem charges for the Board members, which is a couple of hundred dollars for each day of hearing.

32. What is a prehearing conference?

A prehearing conference is a meeting between the Board Chair and a representative of each side on the case. It is a meeting to get a general plan for how the case will proceed. It will narrow the issues to be raised during the hearing and will give everyone a heads up on the documents that will be introduced as evidence and the witnesses who will be called. When the prehearing conference is scheduled, each side will receive a letter which describes what each party must do before the prehearing conference. See MLRB Rule, Ch. 12, section 10 (2).

Sometimes it becomes clear during the prehearing conference that the facts are not in dispute and the case can be resolved without an evidentiary hearing. Also, sometimes the parties realize they can work out a settlement of the problem without having a full hearing.

33. Do I have to have an attorney to file a PPC?

No. You can represent yourself or have someone who is not an attorney represent you. If you decide to represent yourself, that is called proceeding pro se, which is Latin meaning “for oneself.”

34. Can I call the MLRB for advice on how to handle my case?

No. The MLRB is a neutral agency and it is improper for the staff or the Board members to discuss the merits of your case or advise you on how to handle your case. The MLRB staff can answer questions on the use of our forms and general procedures, but not the specifics of how you should handle your case.

35. If I chose to represent myself, will I have to be able to understand all sorts of legal jargon and legal technicalities to get my case heard?

No. We expect lawyers to understand this stuff, but not non-lawyers. The Board tries to make sure that everyone understands the steps in the process and that there are no misunderstandings of what is required. If you don't understand a term or a request, you need to speak up when you first hear it. The Board can't spoon feed you and can't advise you on how to present your case because then the Board would no longer be a neutral agency. It is a hard line to draw and sometimes it may seem like the Board isn't very helpful, but it would be worse if we were giving too much help to one side or the other.

36. Can I just skip the MLRB process and go to court instead?

No. They will just send you back to the MLRB (and you won't get a refund of the court filing fee).

37. Is there a deadline for filing my PPC with the Board?

Yes. You must file your PPC no later than six months after the date on which the prohibited conduct took place, or when you knew, or should have known, that the conduct took place. This is a strict time limit so pay attention to dates!

38. What does "statute of limitations" mean?

A "statute of limitations" is a limit on the time that can pass between when the prohibited conduct occurs and when you must file a complaint. As noted above, the limitations period is just 6 months in cases handled by the Maine Labor Relations Board. This is much shorter than the limitations period for issues handled in court. You must file your PPC no later than six months after the date on which the prohibited conduct took place, or when you knew, or should have known, that the conduct took place. The Board is not allowed to extend the six-month period because it is set in the statute.

39. Can an individual employee file an unfair practice charge alleging the employer violated provisions of the Act?

Yes. An employee can file a charge against either an employer or an employee organization alleging that the employee's rights were violated. However, individual employees do not have standing to allege that an employer changed something in violation of a collective bargaining agreement, or that the employer failed to bargain in good faith with the union.

40. Why can’t an employee charge a contract violation before the MLRB?

A charged violation of a collective bargaining agreement is a grievance. Grievances must be filed and processed through the grievance procedure of your collective bargaining agreement. The MLRB does not have authority under the Act to hear and decide grievances.

41. Why can’t an employee charge the employer with failure to bargain in good faith?

Under the law, the duty to bargain in good faith runs exclusively between the public employer and the bargaining agent; they are the only parties involved and are the only ones who can file such a charge against each other.

42. What happens at a PPC hearing?

A PPC hearing is a lot like a hearing in court, with the three members of the Board presiding. At the beginning, the parties are usually asked to give an opening statement, which describes generally what they expect to prove at the hearing. The opening statement is not evidence in the case but is a way of helping the Board understand why the Complainant filed the complaint and how the Respondent views the issues. After the opening statements, the Complainant calls its first witness. The Complainant asks the witness questions to bring out the facts relating to the charge. After a question is asked, the Respondent may object to the question by saying “objection” and the witness may not answer the question until the objection is resolved. The Board Chair will ask the objecting party for the basis of the objection and will then ask for comment from the Complainant before ruling on the objection. If the objection is sustained, the witness cannot answer the question; if the objection is overruled, the witness must answer. When the Complainant is through asking questions of the witness, the Respondent may cross-examine the witness. After the Respondent is through with its cross-examination, the Complainant has the opportunity to conduct re-direct examination. Re-direct examination is limited to asking the witness to clarify or expand their answers to cross-examination. After the parties are through questioning the witness, the Board members may have questions for the witness. The Complainant then calls its next witness and the process is repeated until the Complainant has presented all of its witnesses and the Complainant “rests.” A Complainant that has “rested” cannot present any additional evidence, except for evidence to rebut the Respondent’s case.

The Respondent then puts on its case. The examination and cross-examination occur just as with the Complainant’s case, except now the Respondent examines the witnesses first and the Complainant cross-examines them. Once the Respondent has presented all of their evidence, the Respondent “rests.” The Complainant is then given the opportunity to present rebuttal evidence. After all the evidence has been presented, the Board will usually ask for written briefs. The schedule for submitting written briefs is generally set at the close of the hearing. The Board will issue a written decision at some point after that.

43. If I choose to represent myself in a PPC case, can I also be a witness?

Yes, but you should bring someone to ask you questions. This protects the Respondent’s right to object to questions and serves to protect the quality and relevance of the evidence that is presented for the record.

44. Can the Board require a losing party to pay the other side's attorneys' fees?

No. The Board can order the employer or the union or an individual party to stop violating the law, to post a notice to employees that they won't do it again, and can order the union and the employer to go back to the bargaining table. The Board can also order an employer to reinstate an employee and pay back wages and can order other remedies designed to put things back the way they were before the law was violated. The Board cannot award money damages, and cannot make the union or management agree on any particular contract terms.

45. Can I file a PPC by email or fax?

No. See MLRB Rules Chapter 12,  4-6.

 

FAQs: Is There A Glossary of Terms Anywhere?

Yes, please see below.

Abeyance. When a case is being "held in abeyance" it means it is being held without any further action until something else happens, like when the parties are negotiating for a new contract and want to see how that goes before proceeding with the PPC.

Admission. This is a recognition by the other party that an allegation is true. An admission is treated just like a proven fact.

Allegation. This is an assertion, that is, a statement or a claim made in the complaint which that party will attempt to prove to be true in the hearing (unless, of course, the other party admits it to be true).

Argument/Argue.  Just like we don't have parties here all the time, we also don't sit around arguing all day either. Argument simply refers to presenting your legal theories and connecting them to the relevant facts so that the Board can make a decision on the PPC. When this usually happens at the end of the hearing it is called "oral argument." If a party wants to present oral argument, it is their right. Often the parties would rather file written argument (a "brief") at some point after the end of the hearing. The deadlines for filing the briefs will be established at the end of the hearing with input from the parties.

Brief. A brief is a written argument on a particular subject. At the end of the hearing, the Board usually asks the parties to file briefs. This would be a written summary of the factual matters proven in the hearing and the legal analysis of what those facts prove. The brief is the party's chance to lay out for the Board its position on whether the Board should either find that a violation of the law has occurred or that there was no violation of the Act.

Complainant. The person, union, or employer who has filed the prohibited practice complaint. (Think: the Complainant is complaining that the law has been violated. Courts use the term Plaintiff, which means the same thing.)

Continuance. When a complainant or a respondent asks for a "continuance," the request is pretty much for an extension in time for a deadline or a delay before the next step in the proceeding.

Duty of fair representation. The bargaining agent must represent all of the employees in the unit, not just those who voted for it and not just those who are union members.

Ex Parte.  Ex Parte communication means when one side communicates with a Board member (or the Board's attorney) either directly or indirectly. EX PARTE COMMUNICATION IS PROHIBITED and the ban applies to anyone "legally interested in the outcome of a hearing," not just the parties.

Filing/File. This is the term for officially submitting something to the Board. When a document is received at the Board, either by mail or hand delivery, it is date-stamped and that date is considered the date it was "filed" (sometimes called the "filing" date).

Hearing/Evidentiary Hearing. For a PPC, the hearing is when the case is presented by calling witnesses who testify under oath as to the events which are the basis of the complaint. If there are documents that need to be admitted into evidence, those documents can be offered through a witness who has some connection to the document. The rules regarding evidence are not as strict as the rules used in courts, but sometimes documents are not allowed if they are not relevant or are unreliable.

Jurisdiction. This relates to the legal authority of the Board (or any court). The jurisdiction of the MLRB is limited to claims alleging a violation of one of Maine's public sector collective bargaining laws. So if your neighbor who works at the gas station or at BIW has a problem at work, even one related to collective bargaining, the MLRB does not have jurisdiction to hear that case because it is private sector, not public sector.

Party.  A party is a person or organization that is involved in a case either by filing the PPC (the Complainant) or the person or organization who is alleged to have violated the law (the Respondent).

The Record. This is the official record of the case and includes the complaint, any exhibits accepted as evidence during the hearing, the transcript of the hearing (which includes only those parts that are "on the record" and which would include any oral argument), and any written briefs submitted as instructed by the Board Chair.

Respondent. The person, union, or employer who the PPC claims has violated the law. (Think: The Respondent has to respond to the charges made in the complaint. Courts use the term Defendant.)

Response. The Respondent's answer to the charges made in the PPC. Typically, the response will go through each of the numbered paragraphs in the Complaint and admit or deny those facts or state that the Respondent does not know whether the fact is true or not.

Standing.  To "have standing" means you have the legal authority to bring a particular type of case. Sometimes it is complicated, but a simple example is that your neighbor who works only at the gas station or at BIW doesn't "have standing" to bring a case alleging a violation of Maine's public sector collective bargaining laws because that neighbor is not a public sector employee or a public sector employer or a union representing public sector employees.

Stipulation.  This is statement that the parties agree is true and can be considered by the Board in making its decision. Sometimes when a particular fact is not in dispute, it is easier to write a stipulation than having a witness testify to the fact at a hearing.

Unilateral.  This word means one (uni) side (lateral), so a unilateral change is a change made by one side. A unilateral change is sort of the opposite of collective bargaining, where the union and the employer come to an agreement on something through negotiating with each other.