LEWISTON — Attorneys for Bates College argued in a recent legal filing that if the liberal arts college prevails in its quest to have faculty and staff split into separate unions, employee votes cast in a union election in January should be trashed and new ballots sent out.

“The removal of faculty from the proposed bargaining unit would be a substantial change in the character of the bargaining unit and one that, had it been decided earlier, might have affected the votes of everyone, both professionals and non-professionals alike,” Boston lawyers Nicholas DiGiovanni and Rachel Ladeau said in a brief to the National Labor Relations Board.

Both the college and the union that would like to represent 628 Bates employees are angling to convince the five-member federal agency to take their side in a dispute about who should be included in the proposed union.

The crux of the debate is whether it is appropriate to have faculty and other staff in the same union. The college argues that it isn’t. The Maine Service Employees Association, which hopes to represent Bates workers, says it is.

While it isn’t clear how the labor board will view the issue, a preliminary decision favored the college by a 2-1 vote. However, both of the board’s Republicans backed Bates while the only Democrat on the initial panel sided with the union, and the remaining two members of the full panel, who have yet to take sides, are Democrats.

After more than 30% of Bates workers signed paperwork in October seeking union representation, the board arranged for a secret vote in January among eligible employees to decide if they want to be in the MSEA, which is part of the Service Employees International Union.

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At this point, nobody knows how the college’s employees voted in January. Their ballots have not yet been counted.

Those votes were impounded until the board decided which of them should be counted. A distinction was made between votes by staff and votes by the non-tenured and non-tenure-track faculty so they could be tallied separately if necessary.

The union argues the labor board should give a green light to every eligible Bates employee to belong to the same union. It says they have more than enough in common to justify membership in the same union.

Jeff Young, a lawyer for the union, said the labor panel has traditionally favored wall-to-wall unions at the same employer.

But Bates’ attorneys insist in their brief that the interests and concerns of faculty members are so different than other staff that they ought to be in separate unions, assuming they wish to be in any union at all.

If the labor board supports the union’s position, all the impounded votes can simply be tallied. If a majority backed the union, then Bates will have one of the largest union locals in the state.

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It’s more difficult to say what will happen if Bates prevails.

The board could count the staff ballots separately while discarding the faculty ones.

But Bates’ lawyers said that “it would not be appropriate to simply separate out and not count the faculty votes from the previously-held election” because employees voted on the assumption of a union that included everyone eligible.

Bates said that if the two groups are to be considered separately, “the election needs to be set aside and a new election ordered.”

The labor relations board’s regional director decided in December that a single wall-to-wall unit of contingent faculty and staff was appropriate so long as professional employees first cast separate ballots that would show they favored the arrangement.

Young urged the board to leave in place a traditional presumption that wall-to-wall units are the best union for a single place of employment — a standard that Bates’ attorney said should be set aside.

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Young said, though, that even if the commissioners open the door to separate units for the two groups, they should consider the facts at Bates and recognize that faculty and staff are not distinct enough to warrant separation from each other.

“There is no evidence to suggest a unit of contingent faculty and other professional employees — should they choose to be represented in a larger unit with non-professional employees — could not achieve a stable bargaining relationship,” Young wrote in his legal brief.

“On the contrary,” he said, “the record shows that faculty share many common interests with other non-faculty employees and would have many areas in which they would have mutual concerns with their coworkers.”

Young said that when faculty members and staff have varied interests, “those differences can be addressed in the collective bargaining agreement, just as they are addressed in other instances where professionals have elected to join in a larger unit.”

Bates’ lawyers said that about 85 contingent faculty members “do not share an appropriate community of interest with staff to be in the same unit” with staff members. They said the faculty members “have both teaching and service functions” so the nature of their work is different from other college employees.

It is not clear when the labor panel will decide the issue.

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