STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 03-UD-02 Issued: October 28, 2002 ___________________________________ ) RYAN ADAMS, ) Petitioner, ) ) and ) ) TEAMSTERS UNION LOCAL NO. 340, ) ) UNIT DETERMINATION Certified Bargaining Agent, ) REPORT ) and ) ) CITY OF WATERVILLE, ) ) Employer. ) ___________________________________) PROCEDURAL HISTORY This unit determination proceeding was initiated on August 5, 2002, when Ryan Adams, an employee of the Waterville Parks and Recreation Department, filed a petition for unit determination with the Maine Labor Relations Board ("Board"). The petition seeks a determination whether a unit consisting of the Parks Foreman, Grounds Mechanic, and Parks Laborer should be severed from the existing Waterville Departments of Public Works and Parks and Recreation Bargaining Unit, pursuant to Section 966 of the Municipal Public Employees Labor Relations Law ("MPELRL"). The Petitioner seeks to retain the same bargaining agent, Teamsters Union Local No. 340 ("Teamsters" or "Union"), as the agent for this smaller bargaining unit. The Teamsters are the certified bargaining agent for the Waterville Departments of Public Works and Parks and Recreation Bargaining Unit. Both the City of Waterville ("City") and the Teamsters filed a timely response to the petition. [-1-] __________________________________________________________________ The hearing examiner conducted a prehearing conference by telephone in this matter on September 18, 2002. A hearing notice was issued on September 11, 2002, and was posted for the benefit of affected employees. The hearing was conducted on September 26, 2002. Petitioner Ryan Adams appeared on behalf of himself. Business Agent Kenneth Eaton appeared on behalf of the Teamsters. William Lee, Esq. appeared on behalf of the City. The parties were afforded full opportunity to examine and cross-examine witnesses, and to present evidence. The following witnesses were presented at the hearing: for the Petitioner, Ryan Adams; for the Teamsters, Shop Steward Chris Blodgett; for the City, Director of Parks and Recreation Jim Toner. The parties presented written argument following the conclusion of the hearing, on October 10, 2002. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination lies in 26 M.R.S.A. 966. EXHIBITS The following exhibits were admitted to the record without objection of the parties: City of Waterville Exhibits 1. Unit & Departmental History (withdrawn) 2. Parks & Recreation Department-Code of Ordinance, City of Waterville 3. Public Works Department-Code of Ordinance, City of Waterville 4. Parks & Recreation Mission Statement 5. Public Works Mission Statement 6. Parks & Recreation Goals & Objectives 7. Parks & Recreation Employee Flow Chart 8. Public Works Employee Flow Chart 9. Parks & Recreation Parks Foreman Job Description (Grade 12) -2- _________________________________________________________________ 10. Parks & Recreation Grounds Mechanic Job Description (Grade 10) 11. Parks & Recreation Laborer Job Description (Grade 7) 12. Public Works Bargaining Unit Job Descriptions 12a) Public Works Laborer (Grade 7) 12b) Custodian (Grade 7) 12c) Custodian Team Leader (Grade 7) 12d) Traffic Safety Maintenance Technician (Grade 8) 12e) Equipment Operator (Grade 10) 12f) Sanitation Equipment Operator (Grade 10) 12g) Facilities Maintenance Technician Apprentice (Grade 10) 12h) Facilities Maintenance Technician (Grade 12) 12i) Labor Team Leader (Grade 12) 12j) Fleet Maintenance Technician (Grade 12) 12k) Airport Maintenance Team Leader (Grade 12) 12l) Traffic Safety Maintenance Team Leader Apprentice (Grade 12 or 15) 12m) Fleet Maintenance Technician Advanced (Grade 14) 12n) Heavy Equipment Operator (Grade 15) 12o) Traffic Safety Maintenance Team Leader (Grade 16) 12p) Fleet Maintenance Team Leader (Grade 16) 12q) Master Electrician (Grade 16) 13. Collective Bargaining Agreement 7/1/99-6/30/02 14. Affidavit of Samuel Green 15. Affidavit of Andrew Mosher Teamsters Union Local 340 Exhibits 1. Affidavit of Lawrence Meunier 2. Affidavit of Joey V. Meunier 3. Affidavit of Mark C. Isbell 4. Affidavit of Robert A. Mercier, II 5. Affidavit of Dennis Hosea 6. Affidavit of William E. Hapworth, Jr. 7. Affidavit of Richard Quirion 8. Affidavit of Larry Carver 9. Affidavit of Amos J. Roy 10. Affidavit of Chris DeMerchant 11. Affidavit of David Deschaine 12. Affidavit of Michael Folsom 13. Affidavit of Daniel Mills 14. Affidavit of Chris Blodgett 15. Affidavit of James C. Loisel 16. Affidavit of Armand L. Frappier 17. Affidavit of Daniel Main 18. Affidavit of Mark R. Clement 19. Affidavit of Paul Quirion -3- _________________________________________________________________ STIPULATIONS The parties agreed to the following factual stipulations on the record: 1. The City of Waterville is a public employer within the meaning of 26 MRSA 962(7). 2. Teamsters Local No. 340 is a public employee organization that is the certified bargaining agent for the Waterville Departments of Public Works and Parks and Recreation Bargaining Unit ("Bargaining Unit"). 3. The Bargaining Unit consists of all full-time, permanent, hourly employees of the Waterville Departments of Public Works and Parks and Recreation. 4. The Petition filed by Ryan Adams on August 5, 2002, seeks to create a new bargaining unit consisting of the Parks and Recreation Department employees currently in the Bargaining Unit and to sever this smaller unit from the larger Bargaining Unit. 5. The positions to be included in the proposed Parks and Recreation Department bargaining unit are: Parks Foreman, Grounds Mechanic and Laborer. 6. There is no contract bar to this Petition. 7. The positions in the proposed Parks and Recreation Department bargaining unit share a community of interest, as defined by 26 MRSA 966(2) and Board Rule Chap. 11, 22(3). FINDINGS OF FACT 1. Before 1988, the employees of the Waterville Public Works Department performed all maintenance required for the City's parks, which mostly entailed mowing and maintaining grass. -4- _________________________________________________________________ Over the years, the City services grew to include more recreational facilities and programs. A separate Parks and Recreation Department was then created. 2. The separation of departments was recognized by City Ordinance in 1990. 3. Each department is overseen by its own director. Both the Public Works Director and the Parks and Recreation Director report to the City Administrator; the City Administrator reports to the Mayor and City Council. 4. Three bargaining unit members work in the Parks and Recreation Department (Parks Foreman, Grounds Mechanic, and Laborer). Approximately 29 bargaining unit members work in the Public Works Department (including a variety of positions such as Equipment Operator, Fleet Maintenance Technician, Custodian, and Laborer). 5. The primary mission of the Public Works Department is to maintain the City streets, including snow removal. Public Works Department bargaining unit employees also collect refuse for the City, maintain the City airport and maintain the City Hall. 6. The primary mission of the Parks and Recreation Department is to maintain the parks, playing fields and other recreational facilities in the City (such as the indoor family aquatic center). The Parks and Recreation Department oversees recreational programming in the City, although most of the recreational programs (day camps, sports programs) are conducted by seasonal employees not in the bargaining unit. 7. Employees of the Public Works and the Parks and Recreation Departments perform different day-to-day tasks, depending on their position. However, the positions are similar -5- _________________________________________________________________ in that they all require manual semi-skilled to skilled labor. 8. Employees of the Public Works Department occasionally perform Parks and Recreation Department work, and vice versa. For instance, Parks and Recreation employees sometimes help in snow removal. Public Works employees sometimes help with some recreation facility maintenance, and setting up for City festivals. 9. All employees in the Public Works and Parks and Recreation Departments Bargaining Unit are paid on an hourly basis and are eligible for over-time pay. The Public Works Department employees often have overtime work available in the winter due to snow removal duties. The Parks and Recreation Department employees more often have overtime work available in the summer due to summer programs and the increased use of facilities in the summer. 10. The wage scale for all bargaining unit employees is set by the collective bargaining agreement. The wage scale includes Grade 7 (Laborer, Custodian, Custodian Team Leader); Grade 8 (Traffic Safety Maintenance Laborer, Apprentice Equipment Operator); Grade 10 (Sanitation Equipment Operator, Facility Maintenance Technician Apprentice, Equipment Operator, Grounds Mechanic); Grade 12 (Facility Maintenance Technician, Traffic Safety Maintenance Team Leader Apprentice, Apprentice Heavy Equipment Operator, Airport Maintenance Team Leader, Labor Team Leader, Safety Inspector, Fleet Maintenance Technician, Parks Foreman); Grade 14 (Fleet Maintenance Technician Advanced); Grade 15 (Heavy Equipment Operator); Grade 16 (Master Electrician, Traffic Safety Maintenance Team Leader, Fleet Maintenance Team Leader). The range in wages for Step 1 from July 1, 2001 to June 30, 2002 was: $10.66/hour (Grade 7); $10.97/hour (Grade 8); $11.68/hour (Grade 10); $12.30/hour (Grade 12); $13.44/hour -6- _________________________________________________________________ (Grade 14); $14.08/hour (Grade 15); $14.58/hour (Grade 16). 11. Many of the jobs in the Public Works Department require operating equipment at varying levels of skill (such as operating trucks of various tonnage with various attachments, rollers, front end loaders, bulldozers). Because of this, the Public Works Department operates a training and apprenticeship program whereby employees can train on higher-skill equipment and, if they successfully complete the apprenticeship, can obtain a higher paying position. 12. The work of the Parks and Recreation Department employees does not involve such a variety of equipment operation. The Parks and Recreation Department does not have a training or apprenticeship program. If a Parks and Recreation Department employee wanted to become, for example, a heavy equipment operator, that employee would have to bid on and obtain a job in the Public Works Department. 13. The employment benefits, hours and other terms of employment for all bargaining unit members are similar as determined by the collective bargaining agreement. Public Works employees sometimes work four ten-hour days, while the Parks and Recreation employees do not usually work on this schedule. 14. All of the bargaining unit positions require a high school education or, in some cases, a degree from a vocational school. All positions require the employee to have a driver's license and, in many cases, a specialized driver's license (Class B, D, etc.). The equipment operator positions require experience in operating the relevant equipment. The master electrician position requires the possession of a valid Master Electrician's License. -7- _________________________________________________________________ 15. The Parks and Recreation Department maintains it own office on Western Avenue in Waterville. The Public Works Department operates out of the Public Works garage which is located one to two miles away from the Parks and Recreation Department office. There is little interaction between the employees of the two departments except when they put gas in vehicles (all done at the Public Works garage), when they attend Union meetings and when they perform "cross department" work. 16. This bargaining unit has been in existence at least 30 years, and has been represented by the Teamsters Local since that Union was certified after election in 1978. 17. In the past ten years, the City and the Union have ratified four collective bargaining agreements. The most recent three-year collective expired on June 30, 2002. This agreement was preceded by, in order, a three-year agreement, a one-year agreement, and a three-year agreement. 18. The City and the Union are currently in mediation to negotiate a successor collective bargaining agreement. In the past, the parties have sometimes utilized mediation or fact- finding prior to ratifying an agreement. The primary issues in dispute between the parties in the most recent collective bargaining agreements have been wages and the cost of health insurance. 19. The Petitioner (Mr. Adams) has been employed by the City for about eight. He was initially hired as a Public Works Laborer, then worked as a Parks and Recreation Laborer, then Grounds Mechanic, then Parks Foreman. The Petitioner has held the latter positions over two years. 20. The Petitioner became the Parks Foreman after the individual (Mr. Blodgett) who held this position for eight years -8- _________________________________________________________________ accepted a position with the Public Works Department as an apprentice heavy equipment operator. 21. Mr. Blodgett is the shop steward for the bargaining unit and has held this position for about 10 years. The position of shop steward is an elected position. No one other than Mr. Blodgett has expressed an interest in being the shop steward during the past 10 years. 22. Various persons have held the position of assistant shop steward in the past 10 years. There have been periods where there has been no assistant shop steward because no employee wanted the job. The current assistant shop steward has held the position for about six months. The current assistant shop steward is an employee of the Public Works Department. 23. The shop steward approached some employees of the Parks and Recreation Department to sign a petition to elect the current assistant shop steward. The election was complete after the shop steward obtained the signatures of a majority of the members of the bargaining unit. The Petitioner (Mr. Adams) signed the petition to elect the current assistant shop steward. 24. Union meetings for the bargaining unit employees are held at the Public Works Department office, since a majority of the bargaining unit employees work there. Sometimes several days' notice is given of these meetings, but sometimes only a few hours' notice is given due to the schedule of the Business Agent when he attends the meetings. 25. The shop steward and the assistant shop steward are the only bargaining unit members assigned to the negotiating team. No other bargaining unit members are invited to be on the negotiating team. Potential contract proposals are solicited from all bargaining unit members at union meetings held prior to -9- _________________________________________________________________ and during the negotiations. None of the Parks and Recreation Department employees offered contract proposals for the current negotiations. 26. The current employees of the Parks and Recreation Department have never asked the union to present contract proposals unique to their Department or positions. 27. Neither the Petitioner nor the other two current employees of the Parks and Recreation Department have ever sought to be a union officer, shop steward or assistant shop steward. 28. The Petitioner is unhappy with information that he has received from the Union in the past about the health insurance provided under the collective bargaining agreement from the Northern New England Benefit Trust. The Petitioner has been given differing information from the Union in the past about whether or not he can "opt out" from being covered by and paying for this insurance. He is currently covered by this health insurance because he was advised by the Union that he could not opt out. At least one other member of the bargaining unit (a Public Works employee) also wishes that there was an opt out provision. 29. In current negotiations for a successor collective bargaining agreement, the Union has proposed that no bargaining unit member be allowed to opt out from health insurance coverage, pursuant to the terms mandated by the Northern New England Benefit Trust. 30. All three of the current bargaining unit members employed in the Parks and Recreation Department would like to be placed in a separate bargaining unit from the larger bargaining unit containing both employees of the Parks and Recreation and Public Works Departments. The Parks and Recreation Department -10- _________________________________________________________________ employees became particularly interested in severance upon learning earlier this year that the City was facing budget problems and that some City employees might be laid off. Since the collective bargaining agreement contains a "last-in-first- out" provision, and since one seniority list is maintained for the entire unit, the jobs of one or more Parks and Recreation employees could be at risk if there are lay-offs. Employees of either department could, if laid off, "bump" less senior employees of either department. 31. The Petitioner first approached the Business Agent about the possibility of a separate bargaining unit for Parks and Recreation Department employees several months before filing the present petition. The Bargaining Agent did not support the idea and advised the Petitioner that the Union was not interested in representing the Parks and Recreation Department employees if they became a separate bargaining unit. 32. In current negotiations for a successor collective bargaining agreement, the City has proposed that separate seniority lists be maintained for the Public Works Department employees, the Parks and Recreation Department employees, and custodial employees, and that any reduction-in-force be carried out along these department lines. The Union opposes this proposal. 33. The Director of the Parks and Recreation Department would like the Parks and Recreation Department employees to be in a separate bargaining unit with a separate seniority list. In part, the Director wants this separation in order to protect the Parks and Recreation Department employees and to keep the employees who are experienced in doing Parks and Recreation work in their jobs. There have been occasions where Public Works employees have "bumped" into the Parks and Recreation Department -11- _________________________________________________________________ in order to preserve employment, but really did not want to do the work of the Parks and Recreation Department. 34. In the current contract negotiations, the City has proposed establishing an outdoor ice rink. The Parks and Recreation Department employees would normally be in charge of maintaining any such rink; such a rink has been part of the Parks and Recreation Department's goals and objectives. The Union has thus far rejected this proposal, although none of the Parks and Recreation Department bargaining unit members was consulted about this. 35. The current Parks and Recreation Grounds Mechanic was dissatisfied with the way the shop steward handled his request to file a grievance when he was denied a job as a Public Works laborer last year. The shop steward advised the Grounds Mechanic that the grievance had little merit, as seniority was not a factor in obtaining an entry level position. The shop steward did not file the grievance in part because the shop steward was sick on the last day to file and he missed the filing deadline. 36. There are currently four other active bargaining units of City employees, in addition to the bargaining unit at issue. These include police officers, firefighters, a general government unit (including Secretaries, the Deputy City Clerk and others), and a supervisory unit (including a Code Enforcement Officer, the Deputy Assessor, and others). The Teamsters represent the police officers and the firefighters; The American Federation of State, County and Municipal Employees ("AFSCME") represents the two other units. DISCUSSION The issue presented by this case is whether three positions in the Waterville Parks and Recreation Department - Parks -12- _________________________________________________________________ Foreman, Grounds Mechanic, and Parks Laborer - now a part of the Waterville Departments of Public Works and Parks and Recreation Bargaining Unit, should be allowed to sever from that unit and become a separate bargaining unit. The Petitioner seeks the continuing representation of the Teamsters as the bargaining agent, if this severance petition is granted. The Petitioner argues that the severance petition[fn]1 should be granted because the Parks and Recreation employees share a clear community of interest, and do not share a community of interest with the larger existing bargaining unit. The City concurs in this argument. The Teamsters argue that the severance petition should be denied because the larger existing bargaining unit shares a community of interest, has a long and stable history of collective bargaining, and because the Teamsters have provided adequate representation for the entire unit, including the Parks and Recreation employees. The Board has ruled that a unit determination petition accompanied by an adequate showing of interest is the proper mechanism for attempting to sever a bargaining unit from an ____________________ 1 As described more fully below, the proper mechanism to seek the severance of a unit is to file a petition for a unit determination, as the Petitioner has done here. The Board Rules do not provide for a "petition for severance" per se; however, for ease of reference, the petition will be referred to as one for severance for the remainder of the decision. Whether the Teamsters should continue as bargaining agent for the smaller bargaining unit, if severed, is not an issue before the hearing officer. Board practice has been to find that a bargaining agent, once certified, continues to remain the bargaining agent until decertified or until the bargaining agent disclaims representation. In a previous severance petition where the severance was granted, a decertification/bargaining agent election was held following the severance and a new bargaining agent was elected and certified. Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, No. 84-UD-11 (MLRB March 16, 1984), aff'd, No. 84-A-04 (MLRB Apr. 25, 1984). In the present matter, the parties have not yet ratified a successor agreement. Under these circumstances, the Board Rules appear to allow the Teamsters to disclaim representing the smaller bargaining unit if the Teamsters elect to do so. Chap. 11, 81 of the Board Rules. -13- _________________________________________________________________ existing unit. See Teamsters Local Union No. 48 and State of Maine (Institutional Services Unit), et al., No. 84-A-02 (MLRB Apr. 2, 1984); City of Bangor and Local 1599, IAAF, No. 80-A-03 (MLRB July 18, 1980). The Petitioner here has presented a sufficient petition accompanied by an adequate showing of interest from employees currently holding the Parks and Recreation positions at issue. As a unit determination, this matter turns upon an evaluation of the presence or absence of a "clear and identifi- able community of interest" per 26 M.R.S.A. 966(2). In determining whether employees share the requisite community of interest in matters subject to collective bargaining, the following factors, at a minimum, must be considered: (1) similarity in the kind of work performed; (2) common supervision and determination of labor relations policy; (3) similarity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarity in the qualifications, skills and training among the employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the employer's organizational structure. Chap. 11, Sec. 22(3) of the Board Rules. The requirement that the hearing examiner examine the extent of the community of interest was explained by the Board over 20 years ago, and is still valid today: Title 26 M.R.S.A. 966(2) requires that the hearing examiner consider whether a clear and identifiable community of interest exists between the positions in question so that potential conflicts of interest among bargaining unit members during negotiations will be minimized. Employees with widely different duties, training, supervision, job locations, etc., will in many cases have widely different collective bargaining objectives and expectations. These different -14- _________________________________________________________________ objectives and expectations during negotiations can result in conflicts of interest among bargaining unit members. Such conflicts often complicate, delay and frustrate the bargaining process. AFSCME and City of Brewer, No. 79-A-01, slip op. at 4 (MLRB Oct. 17, 1979). While a petition for severance entails the same analysis of the community of interest factors as a unit determination petition seeking creation of a new unit, the issues in a severance petition are more complex. The hearing examiner must analyze both whether a community of interest exists amongst the employee classifications in the proposed bargaining unit to be severed, and also whether a community of interest exists amongst the proposed bargaining unit and the larger existing unit. As the National Labor Relations Board has noted, in its seminal severance case Mallinckrodt Chemical Works and IBEW, Local No. 1, 162 NLRB 387 (1966), a severance determination requires a balancing of competing interests: The cohesiveness and special interest of a craft or departmental group seeking severance may indicate the appropriateness of a bargaining unit limited to that group. However, the interests of all employees in continuing to bargain together in order to maintain their collective strength, as well as the public interest and the interests of the employer and the plant union in maintaining overall plant stability in labor relations and uninterrupted operation . . . may favor adherence to the established patterns of bargaining. Mallinckrodt, at 392. In addition, one of the eleven community of interest factors, history of collective bargaining, receives heightened scrutiny in a severance petition. Previous MLRB decisions have deemed the history of collective bargaining to be a "very important" and sometimes the decisive element in severance petitions. Cf., e.g., Teamsters Local Union No. 48 and Town of Winslow and -15- _________________________________________________________________ Council No. 74, AFSCME, No. 84-UD-17, slip op. at 11 (MLRB May 31, 1984) (petition to sever fire fighters from public works unit denied; bargaining history "long" and "fruitful"); Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, No. 84-UD-11 (MLRB March 16, 1984), aff'd, No. 84-A-04 (MLRB Apr. 25, 1984) (petition to sever patrol positions from corrections positions granted; two-year bargaining history cited). The NLRB also finds the history of collective bargaining to be a key element in determining severance petitions. See Kaiser Foundation Hospitals and Independent Brotherhood of Skilled Hospital Maintenance Workers, 312 NLRB 933, at 936 (1993) (Board reluctant to disturb bargaining unit with long history of continuous bargaining, even where Board would not have found the unit appropriate if presented with the issue ab initio). The burden on the petitioner seeking to sever positions out of an existing unit is high. While severance petitions resolved by hearing have not been numerous before the Board, the hearing examiner is aware of only one severance petition that has been granted in the Board's history, the petition to sever the patrol positions from the Cumberland County Sheriff's Office bargaining unit which contained both patrol officers and corrections officers. Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra. One MLRB hearing examiner reviewed precedent from public sector labor boards in other states, concluding that those cases reflected the " . . . overwhelming view that severance petitions, while procedurally permissible, must nevertheless overcome formidable standards for success." Teamsters Local Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 15 (MLRB July 10, 1981). The NLRB also has found that the party seeking severance clearly bears a "heavy burden." Kaiser Foundation Hospitals, 312 NLRB at 935 fn.15. A recent NLRB case affirmed by that Board reviewed the history of severance cases, concluding -16- _________________________________________________________________ that severance has been granted "sparingly" by the NLRB. Metropolitan Opera Ass'n and Operatic Artists of America, 327 NLRB 740, at 752 (1999). In the present matter, the parties have stipulated that the three positions in the proposed Parks and Recreation bargaining unit share a community of interest. This is a logical conclusion considering most of the community of interest factors such as common supervision, scale and manner of determining earnings, and frequency of contact. The question here remains, however, whether these positions should be severed from the larger bargaining unit. This decision turns on a finding whether these Parks and Recreation positions share a community of interest with the remaining positions in the larger existing bargaining unit. Below, the hearing examiner will more fully discuss each community of interest factor as it relates to this ultimate question. (1) Similarity in kind of work performed. This factor (along with the "history of collective bargaining" factor) is key to the present determination, judging by the evidence and arguments presented by the parties. Both the Petitioner and the City argued that Parks and Recreation employees perform functions very different from the Public Works employees because of the type of work performed. The Parks and Recreation employees primarily maintain fields and recreation facilities; the Public Works employees primarily maintain roads. The City further argued that not all bargaining unit employees "enjoy" or are comfortable with performing Parks and Recreation work. The Parks and Recreation Director testified that Parks and Recreation employees are not easily interchanged with Public Works employees; the Petitioner testified, by analogy, that it would make no sense if firefighters were allowed to "bump" police officers. (Tr. 21, 52-53). The Union, on the other hand, argued that the work performed by the Parks and Recreation employees is -17- _________________________________________________________________ similar to the work performed by employees in comparable positions in the Public Works Department. The Union argued that the positions share similar tasks of many manual positions - performing physical labor, maintaining equipment, driving trucks and other machinery, and the like. In evaluating whether the Parks and Recreation positions perform work similar to the Public Works positions, the hearing officer first notes that this bargaining unit contains certain positions that, when looked at in isolation, do not share common work functions. For instance, the day-to-day work of a City Hall Custodian, a Parks Laborer, a Heavy Equipment Operator, or a Master Electrician may be markedly different. The Board has recognized, however, that "similar work" does not mean "identical work." As the executive director has noted in a previous decision, Auburn Education Ass'n/MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op. at 11 (Feb. 27, 1991): In comparing the nature of the work being performed by the various classifications under consideration, the essence or basic type of the functions being performed is far more important than the details of each position's work responsibilities. Inherent in the existence of separate job classifications is a difference in the specific work assignment of each classification; however, such differences do not preclude the inclusion of various classifications in the same bargaining unit. For this reason, bargaining units with sometimes very divergent positions are approved by the Board because the essence of the positions or the goal of the positions share a commonality -- such as supporting the educational process, serving to make City operations run smoothly for its citizens, or working together to -18- _________________________________________________________________ respond to emergency situations.[fn]2 When compared to bargaining units with such divergent positions, the present bargaining unit appears quite homogenous, with most positions requiring physical labor of various kinds and the operation of various types of trucks, equipment and machinery. The goals of the Parks and Recreation Department and the Public Works Department might be quite different, but both Departments are required to provide essential City services, and the employees of both Departments must usually perform physical labor to provide these services. The work required of employees in these two Departments is much more similar than work required of, for example, the City police or the City Hall file clerks. A comparison of written job descriptions supports this conclusion. Of the three Parks and Recreation positions at issue, the position of "Laborer" is employed in both the Parks and Recreation Department and the Public Works Department. Separate job descriptions are maintained for the position in each department (City Exhibits Nos. 11, 12a). Both are paid at Grade 7 under the collective bargaining agreement. Both jobs require a High School degree or equivalent and a Class C Maine Driver's License. The working conditions for both describe the same medium to heavy physical labor (frequent bending and stooping, lifting and carrying objects up to 50 pounds, and the like). Both require manual work such as shoveling and raking. Both ____________________ 2 See, e.g., East Grand Teachers' Ass'n/MTA/NEA and SAD No. 14 Board of Directors, No. 92-UD-01 (MLRB Oct. 1, 1991)(approving unit which consisted of such divergent positions as teachers' aides, school secretaries, the food service director, bus drivers and custodians); AFSCME Council 93 and Town of Sanford, No. 92-UD-03 (MLRB Feb. 21, 1992) (approving unit which included the planning director, the assessor, the code enforcement officer, the director of highways and sanitation, and the deputy fire chief); and Bangor Firefighters Ass'n, Local 772 and City of Bangor, No. 89-UD-06 (Me.L.R.B. Jan. 26, 1989) (approving the accretion of a mechanic to a unit consisting of firefighters, dispatchers and inspection officers). -19- _________________________________________________________________ require the operation of hand-held powers tools and of light trucks. The job description for the Parks and Recreation Laborer states that this Laborer may be required to operate Public Works equipment during the winter months. While the positions of Parks Foreman and Grounds Mechanic have no exact comparable title in the Public Works Department, many job functions and duties are shared by these two positions with comparable positions in the Public Works Department. For instance, the positions of Parks Foreman and Grounds Mechanic are required to operate various types of machinery and trucks as do many positions in the Public Works Department. Both positions have some supervisory duties (preparing work schedules, supervising crews), also a feature of some positions in the Public Works Department (Custodian Team Leader, Sanitation Equipment Operator, Labor Team Leader, and others). In summary, the functions of the three Parks and Recreation Department positions are similar to many positions in the Public Works Department, judging by the job descriptions. The witnesses testified that, while the job descriptions are accurate, the descriptions do not describe all the day-to-day tasks of a position. For instance, the Director of the Parks and Recreation Department testified that the Parks and Recreation Laborer is actually assigned a larger variety of day-to-day tasks than the Public Works Laborer (Tr. 23). The Parks and Recreation Laborer performs a variety of tasks like mowing, field maintenance, and facility maintenance. The Parks and Recreation Laborer sometimes serves as a de facto supervisor of some seasonal help who maintain parks and playing fields. On the other hand, the Public Works Laborer is often assigned only to pick up trash and sort recycling. In part, this distinction is undoubtedly due to the smaller numbers of Parks and Recreation employees, which necessitates each employee to be assigned a wider variety of tasks. The hearing officer was not convinced, however, that this demonstrated that the two positions did not perform "similar -20- _________________________________________________________________ work" as that term has been interpreted by the Board. The essence of the basic work function of both jobs - manual labor and equipment operation - is very similar, as demonstrated by the job descriptions, even though individual assignments may vary between departments. Finally, employees from both Departments are able to perform some "cross-Department" work; if the work functions were so dissimilar, this would not be possible. Employees have been able to transfer experience obtained in a position in one department to a new position in the other department. The Petitioner was first employed as a Public Works Laborer before taking a similar position as a Parks and Recreation Laborer; the Shop Steward was initially a Public Works employee, then worked for the Parks and Recreation Department for eight years, then returned to the Public Works Department as an apprentice heavy equipment operator. These facts further support the conclusion that the positions in the two departments perform similar work.[fn]3 In summary, the positions in the Parks and Recreation Department are similar to comparable positions in the Public Works Department, as the Board has defined that term. This strongly supports a finding of a community of interest between the positions in the larger existing bargaining unit. (2) Common supervision and determination of labor relations policy. All of the positions in the bargaining unit were, at one time, supervised by the Director of the Public Works Department. However, the growth of recreational programs and facilities in ____________________ 3 The fact that some City employees may face lay-offs (that may result in cross-Department bumping) is quite obviously an impetus for the filing of the present Petition. The Director of the Parks and Recreation Department would understandably like to keep the employees he has in their positions due to their experience and present knowledge of their respective jobs. These facts do not establish, however, that the job functions of the positions in the two Departments are so dissimilar - only that it would be easier for many concerned to be left in their current positions. -21- _________________________________________________________________ the City resulted in the creation of a separate Parks and Recreation Department, with a separate Parks and Recreation Department Director. For over ten years now, the Parks and Recreation Department employees have reported to the Parks and Recreation Director (or intermediate supervisors) and the Public Works Department employees have reported to the Public Works Director (or immediate supervisors). As noted above, however, many functioning bargaining units contain divergent positions within different immediate "chains of command." This does not necessarily create conflicts within a unit, particularly when the ultimate supervisory authority rests in one person or entity. Here, both Department Directors report to the City Administrator, and then to the Mayor/City Council. The labor relations policy is uniform for all bargaining unit positions, based upon the collective bargaining agreement and other personnel policies. Since immediate supervision is not common, but ultimate supervision and determination of labor relations policy is common, this factor neither supports nor undermines a finding of community of interest between the positions in the larger existing bargaining unit. (3) Similarity in the scale and manner of determining earnings. All of the positions in the bargaining unit are paid on an hourly basis, on a pay grade/step system. Wages are also subject to overtime provisions of the agreement. The opportunity for overtime pay differs between the Parks and Recreation Department (which has more overtime in the summer) and the Public Works Department (which has more overtime in the winter). However, all bargaining unit employees have a similar interest in the issues of calculating and offering overtime. The positions in the unit are all placed in a total of seven pay grades, ranging from an hourly (step 1) rate of $10.66 to $14.58. While the pay rate between certain positions differs to a degree, there is similarity in the scale and manner of determining earnings, -22- _________________________________________________________________ and this has been true through numerous collective bargaining agreements for this unit. This factor supports a finding of community of interest between the positions in the larger existing bargaining unit. (4) Similarity in employment benefits, hours of work and other terms and conditions of employment. The employment benefits and other terms and conditions of employment for positions in the bargaining unit are the same as defined by the collective bargaining agreement. The parties did not present extensive evidence regarding the hours of work. Apparently, some employees work four 10-hour days at certain times of the year. The witnesses did not identify differences in hours of work to be any source of conflict amongst unit employees. This factor supports a finding of community of interest between the positions in the larger existing bargaining unit. (5) Similarity in the qualifications, skills and training of employees. Certain positions in the bargaining unit require specialized experience and training. For instance, the Fleet Maintenance Technician Advanced must have extensive knowledge of large engine repair and body work. The Master Electrician must hold a valid Master Electrician's license. Except for these types of positions, however, the base qualifications, skills and training are similar for positions within the bargaining unit. Most of the positions require a high school education or equivalent, experience in some type of equipment operation and the possession of a valid driver's license (of different classes). Most of the positions require the ability to lift and perform other medium-to-heavy physical work. The Parks and Recreation Department positions do not "stand out" as requiring unique qualifications, skills or training; these positions do not make up a "distinct and homogenous group" separated by qualifications, skills or training from the Public Works Department positions. Mallinckrodt Chemical Works and IBEW, -23- _________________________________________________________________ Local No. 1, 162 NLRB at 397. This factor supports a finding of community of interest between the positions in the larger existing bargaining unit. (6) Frequency of contact or interchange among the employees. The Parks and Recreation and Public Works Departments are located in separate buildings and locations, therefore limiting any frequent or daily interchange among the employees in the unit. The employees do have some opportunity for interchange, such as at union meetings, at the gas depot, or when cross- Department work is performed. This factor tends to undermine a finding of a community of interest between the positions in the larger existing bargaining unit. (7) Geographic proximity. See discussion in section (6), above. (8) History of collective bargaining. This criterion, as discussed earlier, is an important one in considering a petition for severance. Past MLRB hearing examiners have examined various aspects of the collective bargaining history in evaluating this criterion in severance petitions. Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra (length and stability of bargaining relationship; participation in union affairs by bargaining unit members seeking severance; the offering of special proposals for the group at bargaining table; whether unit created by agreement); Teamsters Local Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10 (MLRB July 10, 1981) (adequacy of union representation in grievances; length and stability of bargaining relationship; the offering of special proposals for the group at bargaining table); Teamsters Local Union No. 48 and State of Maine (Institutional Services Unit), et al., No. 83-UD-25 (MLRB Jan. 10, 1984), aff'd, -24- _________________________________________________________________ No. 84-A-02 (MLRB Apr. 2, 1984) (same).[fn]4 In the present matter, the parties have had a lengthy history of collective bargaining, over 20 years. The parties have had relatively good labor relations. The parties have negotiated in recent years three-year collective bargaining agreements and have needed only limited third-party intervention in settling agreements. In the past four agreements, the parties have required fact-finding on one occasion; that agreement was settled after one day of fact- finding. The Parks and Recreation Department Director (a member of the management negotiating team for over ten years) testified that he believed that contract negotiations have become more difficult over the years and that the conflicting issues between the Parks and Recreation and Public Works Departments has greatly contributed to this increased difficulty (Tr. 85). While the hearing officer has no doubt that the Director sincerely holds this belief, only the present negotiations for a successor agreement seem to reflect any conflict between the parties over ____________________ 4 Past hearing examiners have relied on National Labor Relations Board precedent in finding that the history of collective bargaining and adequacy of representation are important considerations in severance petitions: The adequacy of representation by the incumbent bargaining agent is an important factor in the NLRB's consideration of severance petitions. See, e.g., Bendix Corp., 227 NLRB 1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-5 (1976). The NLRB holds, however, that 'a union that does not accede to all demands made upon it by the unit seeking to be severed cannot be accused of inadequately representing that unit based on that fact alone.' Firestone Tire and Rubber Co., 223 NLRB 904, 906 (1976). A number of factors are considered, including whether members of the proposed unit have participated in the affairs of the incumbent union by acting as stewards and bargaining team members, and whether any special provisions affecting the interests of the proposed unit have been included in bargaining agreements. Bendix Corp., 227 NLRB at 1537; Beaunit Corp., 224 NLRB at 1504. Teamsters Local Union No. 48 and State of Maine (Institutional Services Unit),et al., No. 83-UD-25, slip op. at 14. -25- _________________________________________________________________ the separation of the Departments (for instance, the City has proposed separate seniority lists for Departments). Wages and health insurance costs appear to have predominated discussions in previous contract negotiations. There was no real evidence presented that the Teamsters have represented the Parks and Recreation Department employees in an inadequate fashion in administering the contract or in handling grievances. For eight years, the Shop Steward was the Parks Foreman, essentially giving the Parks and Recreation Department employees ready access to this individual on matters of interpreting the collective bargaining agreement, filing grievances, and the like. About two years ago, the Shop Steward left the Parks and Recreation Department to take a position with the Public Works Department, but he is still available to the Parks and Recreation Department employees. The Shop Steward has processed several grievances over the years for Parks and Recreation Department employees, both before and after his move to the Public Works Department. The Petitioner testified about one grievance that the Shop Steward did not pursue or failed to pursue in a timely fashion on behalf of the Grounds Mechanic. The Petitioner did not seem to have much information about this matter. The City requested a subpoena to have this employee testify, but chose instead to file an affidavit from this employee only on the issue of his desire for severance. The Shop Steward's testimony about his handling of this grievance was also rather vague and confused. The hearing officer was simply not offered sufficient evidence on this issue to conclude that the Shop Steward handled this grievance poorly or, more important to the present matter, that he failed to give proper representation to this employee because he was an employee of the Parks and Recreation Department. The Petitioner also testified about his dissatisfaction with the Union's position that all bargaining unit employees must -26- _________________________________________________________________ participate in the health insurance package, with no opt-out. At least one other employee was identified as being dissatisfied with this arrangement, although this employee works for the Public Works Department. This fact simply demonstrates that in the collective bargaining process, the concerns of individual unit members must at times give way to the concerns of the majority.[fn]5 This is not an issue somehow peculiar to the Parks and Recreation Department employees, nor does it demonstrate inadequate representation on the part of the Teamsters. The present Parks and Recreation Department employees have done little to participate in union affairs. None have served as officers, shop stewards or assistant shop stewards, although opportunities to serve in such positions have been available in the past. The Parks and Recreation Department employees have not sought any special contract proposals during the present or past contract negotiations. Only very recently have the employees even approached the Union to seek their representation for a separate unit. Participation in union affairs is often cited as a factor in considering severance petitions. For instance, in Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No. 84-UD-17 (MLRB May 31, 1984), the hearing examiner noted that the firefighters (who were seeking to be separated from a larger bargaining unit also containing public works employees) actively participated in the union, thereby insuring that their unique circumstances and needs were reflected in the various collective bargaining agreements; this was part of a "long and fruitful collective bargaining history" which supported the conclusion that the firefighters should not be ___________________ 5 Ford Motor Company v. Hoffman, 345 U.S. 330, at 338 (1953) ("Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected.") -27- _________________________________________________________________ severed. Id. at 12. Conversely, when employees do not participate in union affairs and do relatively little to have their concerns addressed, as is the case in the present matter, it is difficult to conclude in hindsight that those employees have been inadequately represented at the bargaining table. Some evidence suggested that the Teamsters could do a better job in making the Parks and Recreation Department employees feel that they have a voice in their representation. Only the Shop Steward and the Assistant Shop Steward are placed on the negotiating team. Thus, employees who are not willing to commit themselves to serve in these positions have no opportunity to be on the team. While the employees are given the opportunity at meetings to give the team input on the negotiations, the Parks and Recreation Department employees believe that their concerns are not heard. In the present negotiations, for instance, the Union negotiating team rebuffed suggestions by the City that an ice rink be established, even though the Parks and Recreation Department employees would maintain such a rink and support the idea. Union meetings are always held at the Public Works Department, sometimes with short notice. While none of these facts demonstrated that the Parks and Recreation Department employees are being inadequately represented by the Teamsters, this manner of doing business has fostered resentment which has, in part, fueled this Petition. The hearing officer is nevertheless mindful that the primary motivation for the Petition being filed at this time is the current talk of lay-offs and the possibility that a Parks and Recreation Department employee may be bumped or laid off due to lack of seniority. It can only be assumed that if the Parks and Recreation Department employees had more seniority, the bumping provisions of the collective bargaining agreement would allow them to preserve their jobs at the expense of Public Works Department employees with less seniority, and the desire for -28- _________________________________________________________________ severance would be substantially decreased. No one can predict at this time whether or how many lay-offs will occur or how the Departments will be affected, precisely. This is a far too temporal situation to cause the break-up of a bargaining unit with a lengthy and fruitful history of collective bargaining. Accord Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No. 84-UD-17, slip op. at 12; Teamsters Local Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 18-19. For all these reasons, the history of collective bargaining strongly supports a finding that a community of interest exists amongst the present bargaining unit and that severing the Parks and Recreation Department employees would undermine a bargaining relationship which has been long, stable and generally fruitful for both sides. (9) Desires of the affected employees. The parties agreed in a prehearing conference that affidavits signed by employees in the bargaining unit who either supported or opposed the severance petition could be admitted into evidence, in lieu of testimony on this issue. The City offered the affidavits of two Parks and Recreation Department employees who supported the severance petition (City Exh. Nos. 14, 15). This, in addition to the testimony of the Petitioner established that all three current Parks and Recreation Department employees support the severance petition. The Teamsters offered the affidavits of 19 Public Works Department employees who opposed the severance petition (Union Exh. Nos. 1 - 19). Therefore, a significant number of employees in the larger existing bargaining unit (but not including the Parks and Recreation Department employees) oppose the petition. This evidence raises an obvious question: When determining the desires of "affected employees," should the desires of all the employees in the existing bargaining unit be considered, or -29- _________________________________________________________________ only those employees who would be severed as the result of the petition? The hearing officer could find no past MLRB decisions which directly dealt with this issue. Several hearing officers considered the desires of the employees in the unit to be severed, but found that inconclusive evidence was presented on this issue. Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No. 84-UD-11, slip op. at 13; Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra, slip op. at 16. This hearing officer was offered conflicting affidavits only from the employees in the unit to be severed, and found that the conflict further undermined the need to sever the unit, in Corporals and Sergeants, Cumberland County Sheriff's Office and Council No. 74, AFSCME and Cumberland County Commissioners, No. 02-UD-03, slip op. at 39-41 (MLRB May 31, 2002). One hearing officer suggested that the desires of both the employees in the unit to be severed and in the larger unit must be considered: With respect to the desires of the employees who support the instant petition, it is clear that their desires cannot transcend other interests of equal importance. Not the least among these are the interests of the other employees in the existing unit and the interest of stability in the collective bargaining process. The history of collective bargaining here has spanned 14 years. This arrangement should not be disturbed lightly, particularly since it has worked reasonably well - albeit not perfectly. Teamsters Local Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 20. The Parks and Recreation Department employees here would certainly be "affected" by a severance; they would need to negotiate their own collective bargaining agreement for the first time and they could possibly lose their bargaining agent. Whether such a small unit could negotiate as effectively as a larger unit is unknown. At the same time, some consideration must be given to the desires of the bargaining unit members who -30- _________________________________________________________________ would remain if the Parks and Recreation Department employees were severed. They, too, would be "affected" by the severance, by possibly losing job opportunities, bumping rights, overtime or other advantages provided by the present collective bargaining agreement. Considering both the desires of the employees to be severed and the employees remaining in the unit is in keeping with the balancing required by the NLRB.[fn]6 For these reasons, the hearing officer believes that the desires of both groups of employees must be considered and weighed. The Parks and Recreation Department employees are uniform in their present desire to be severed from the larger unit. The large majority of Public Works Department employees oppose the severance. As has been mentioned already, the desires of all the bargaining unit members at this time have been influenced, perhaps in great part, by the recent specter of lay-offs. If the City were to announce that no lay-offs would be forthcoming, or that these departments would be unaffected by any lay-offs, the "desires" of these affected employees may well change. Particularly considering this, the hearing officer finds that the desires of the Parks and Recreation Department employees (though uniform at this time) should not be used to support a finding of lack of community of interest amongst the larger existing unit. Any discontent amongst the Parks and Recreation Department employees at this time is insufficient to break up a functioning bargaining unit with a long and stable history. (10) Extent of union organization. This criterion is not particularly valuable in evaluating a severance petition. In addition to fire and police units, the City has at least ____________________ 6 ". . .[T]he interests of all employees in continuing to bargain together in order to maintain their collective strength . . . may favor adherence to the established patterns of bargaining." Mallinckrodt Chemical Works and IBEW, Local No. 1, 162 NLRB 387, at 392 (1966). -31- _________________________________________________________________ three functioning bargaining units - the present one, a general government unit and a government supervisory unit (the latter two units represented by AFSCME). If the Parks and Recreation Department employees were to be severed, it is unclear whether the Teamsters would continue to represent the unit, whether the unit would represent itself, or whether the unit would elect to have no bargaining agent. The severance would have an unknown effect upon the extent of union organization in the City. This factor neither supports nor undermines a finding of community of interest. (11) The employer's organizational structure. As already discussed in criterion (2) Common Supervision, the bargaining unit as presently configured contains employees from two different departments. However, both departments are ultimately supervised by the City Administration, under common personnel policies. The hearing examiner was not provided with an overview of the City's departmental structure. However, a review of the City's two government bargaining units (which contain such diverse positions as Code Enforcement Officer, Highway Super- visor, and Accountant/Tax Collector), suggests that employees from more than one City Department can belong to the same unit without unduly burdening the employer's organizational structure or undermining the collective bargaining process. The fact that employees are employed in different departments in the circum- stances does not in itself undermine a community of interest. In conclusion, a review of most of the community of interest factors supports a finding that the Parks and Recreation Department positions share a community of interest with the positions in the existing bargaining unit. As described more fully above, the employees in the Parks and Recreation and the Public Works Departments perform similar type of manual, semi- skilled to skilled work (although different day-to-day tasks). The bargaining history of this unit has been a long and basically -32- _________________________________________________________________ fruitful one. These two factors especially distinguish it from Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra, where patrol officers and detectives were severed from a bargaining unit of corrections officers and support personnel, after the unit had been in existence less than three years. While some factors superficially support a finding of no community of interest (such as common supervision and frequency of contact), such factors would be given more weight if this were an initial unit determination petition, rather than a petition to sever. Considering all of the community of interest factors, the hearing officer cannot find that the Parks and Recreation Department positions should be severed from the bargaining unit. CONCLUSION The Petition for Unit Determination filed on August 5, 2002, by Ryan Adams, seeking the severance of a unit consisting of the Parks Foreman, Grounds Mechanic and Parks Laborer, from the Waterville Departments of Public Works and Parks and Recreation Bargaining Unit, is denied. These positions will remain as part of the presently-configured bargaining unit. Dated at Augusta, Maine, this 28th day of October, 2002. MAINE LABOR RELATIONS BOARD /s/_________________________ Dyan M. Dyttmer Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4), to appeal this report to the Maine Labor Relations Board. 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 Chapter 10 and Chap. 11 30 of the Board Rules. -33- _________________________________________________________________