STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 13-UD-01
Issued: Feb. 13, 2013

TEAMSTERS UNION LOCAL 340,
Petitioner,

and

CITY OF WESTBROOK,
Respondent

 

UNIT DETERMINATION REPORT

 

	  
     
                         PROCEDURAL HISTORY

     This unit determination proceeding was initiated on June 26,
2012, when Daniel P. Walsh, the Business Agent of the Teamsters
Union Local 340 ("Union"), filed a Petition for Unit Determina-
tion with the Maine Labor Relations Board ("Board," or "MLRB"). 
The petition seeks a determination that Westbrook's per diem
firefighter/rescue personnel[fn]1 be recognized and included
under the collective bargaining agreement for the regular,
full-time firefighter/rescue personnel.  Westbrook ("the City"),
the respondent in this case, filed a timely response to the
petition. The city argued that per diem firefighter/rescue
personnel are "on-call" employees within the meaning of 26
M.R.S.A. § 962(G) and, therefore, excluded from the definition of
"public employee;" and that, pursuant to 26 M.R.S.A. § 966(1),
employees who are excluded from the definition of "public
employee" under Section 962 may not be included in a bargaining
unit. 
     On October 23, 2012, a unit determination hearing notice was
issued and was posted for the benefit of affected employees. 
A prehearing telephone conference with the parties and the
Executive Director was held on November 21, 2012.  A unit

     1  The petition refers to 21 (plus or minus) employees listed on
Union Exhibit 1 and/or W-13.

[end of page 1]

determination hearing was held in front of the hearing examiner
on November 28, 2012, at the Maine Labor Relations Board.  The
Union was represented by Daniel P. Walsh, Teamsters Union Local
340 Business Agent, and the City was represented by Natalie L.
Burns, Esq., and Jennifer W. Peters, Esq.  The parties were
afforded the full opportunity to examine and cross-examine
witnesses and to present evidence.  Daniel Link testified on
behalf of the Union; Fire Captain Gerry Provencher, Director of
Public Safety Michael W. Pardue, and Human Resources Generalist
Liam Gallagher testified on behalf of the City.  At the
conclusion of the hearing, a briefing schedule was agreed upon,
with each party to submit its brief by December 21, 2012.  Daniel
Walsh received an extension and filed his brief on December 31,
2012.

                           JURISDICTION

     Jurisdiction of the hearing examiner over this matter,
including the ability to make a unit determination, is pursuant
to 26 M.R.S.A. §§ 966(1) and 966(2).

                             EXHIBITS

     The following exhibits were offered and admitted into the
record:

     Union 1:  List, per diem firefighters
     Union 2:  26 M.R.S.A. § 962
     Union 3:  26 M.R.S.A. § 966
     Union 4:  copy of Town of Berwick and Teamsters Local Union  
               No. 48, Case No. 80-A-05 (July 24, 1980)
     Union 5:  Agreement between City of Westbrook and Teamsters 
               Local Union No. 340 for the Westbrook Fire/Rescue
               Department Union, July 1, 2009 to June 30, 2012
 Westbrook 1:  Human Resources Policies and Procedures,           
               classification of employees
 Westbrook 2:  Article V:  Police, Fire/Rescue & Communication    
               Personnel rules
 Westbrook 3:  Fire Police duties
 Westbrook 4:  Job description: Paramedic Firefighter

[end of page 2]

 Westbrook 5:  Job description: Per Diem Firefighter/EMS Provider
 Westbrook 6:  Westbrook Fire and Rescue Department Per Diem
               Firefighter Scheduling/Call Back Policy
 Westbrook 7:  Westbrook Public Safety Commission Rules for       
               Hiring and Promotion of Fire & Rescue Personnel
 Westbrook 8:  Westbrook job advertisement: Firefighter/EMS       
               Provider; Per Diem Firefighter/EMS Provider.
 Westbrook 9:  Westbrook Fire & Rescue Department Application for 
               Employment
Westbrook 10:  Westbrook Civil Service Commission Applicant       
               Release and Physician Permission Physical Fitness  
               Test for Fire Department
Westbrook 11:  goperdiem.com brochure, questions and answers, and 
               tentative schedules
Westbrook 12:  Westbrook Fire/Rescue sample shift schedule        
               calendar, November 2012
Westbrook 13:  Chart, Westbrook Fire and Rescue Department Per    
               Diem, Call Company, and Fire/Police 7/1/11-        
               6/30/12
Westbrook 14:  Chart, Westbrook Fire and Rescue Department Per    
               Diem, Call Company, and Fire/Police 7/1/12-        
               11/3/12
Westbrook 15:  List, Westbrook Fire and Rescue Department         
               full-time employees
Westbrook 16:  Chart, comparisons of pay rate based on licensure  
               level and full-time vs. per diem status
Westbrook 17:  Comparison of benefits provided to full-time       
               employees and per diem employees
Westbrook 18:  Westbrook Standard Operating Guideline: To provide 
               a standard policy that will serve as the procedure 
               for the submission of Per Diem Personnel monthly   
               availability
Westbrook 19:  Westbrook Standard Operating Guideline: To         
               establish a guideline for coverage of open slots   
               on either rescue
Westbrook 20:  Westbrook Standard Operating Procedure: To provide 
               for the fair and equitable scheduling of Per Diem  
               Firefighter slots for greater departmental         
               operational effectiveness
Westbrook 21:  Westbrook Standard Operating Procedure: Pertaining 
               to all per diem personnel, to establish a process  
               and documentation of personnel swaps for per diem  
               members

                         FINDINGS OF FACT
     
     1.  The Teamsters Union Local 340 ("Union") is the
petitioner and is the bargaining agent for the full-time
Westbrook Firefighter/Rescue ("fire/rescue") bargaining unit 

[end of page 3]

within the meaning of 26 M.R.S.A. § 962(2).
     2.  The City of Westbrook ("City" or "Westbrook") is a
public employer within the meaning of 26 M.R.S.A. § 962(2).
     3.  The most recent collective bargaining agreement between
the Union and Westbrook expired on June 30, 2012.  
     4.  The fire/rescue bargaining unit covers Westbrook's full-
time fire/rescue workers. 
     5.  There are four categories of employees that work in
Westbrook's fire/rescue department; full-time fire/rescue
workers; per diem fire/rescue workers, who support the City's
full-time fire/rescue workers and are scheduled a month in
advance; the "call company," who are on-call personnel paid if
they respond to calls for service; and the call/per diem
personnel, who serve in the roles of both on-call personnel and
per diem personnel, and who fill in schedule voids for the City.
     6.  The full-time fire/rescue personnel work an average of
42 hours per week over an eight-week period of time.  Per diem
fire/rescue personnel are expected to work no more than 36 hours
per week.
     7.  Per diem firefighters had participated in an online
schedule templating system known as "goperdiem,"  which was
originally created by a per diem fire/rescue worker for
Westbrook, Daniel Link, in 2005 or 2006 and is widely used all
over the state. 
     8.  Although Westbrook no longer formally uses the goperdiem
program, Daniel Link, who testified at hearing and who has worked
for Westbrook for nine (9) years as a per diem fire/rescue
worker, is regularly scheduled to work 36 hours per week, on
Sunday, Tuesday, and Wednesday nights.  He refers to this as
"templating."
     9.  Mr. Link's schedule is the same as when it was 
templated, using a similar process of filling in a monthly
schedule as when formal templating using the goperdiem system for 

[end of page 4]

per diems was utilized.
    10.  Captain Provencher, who has been with the fire
department for 23 years, also refers to the process by which the
fire/rescue personnel plug their schedules into a monthly grid as
templating. 
    11.  Captain Provencher testified that several per diem fire/
rescue workers are on a template, and, thus, work regular hours.
    12.  The process now in place is that the per diems offer
their available times the month prior to the one that needs to be
filled. The City views it, as Westbrook's director of public
safety since February of 2011, Michael Pardue, testified, "as an
offered availability" where the City "reserve[s] the right to
accept what they've offered."  Mr. Pardue further testified that
"absolutely in most cases we are very accepting of the times and
dates that they offer because of the assistance they can provide
to our department."
    13.  Captain Provencher testified that the highest EMS
license level, or paramedics, are allowed to be the first to
template their schedules, because Westbrook's preference is to
have the highest licenced personnel on duty.  As a result, those
personnel are regularly scheduled. 
    14.  Mr. Link testified that Westbrook's policy was that per
diems had to submit a certain number of monthly hours to remain
on a per diem status.  Mr. Pardue testified that under his
oversight, no minimum number of hours per month have been
required for per diems.  One of Westbrook's documents admitted
into evidence, W-18, however, was consistent with Mr. Link's
testimony that minimum hours were required.  In addition,
consequences for three consecutive months without availability
submitted resulted in a 12-month probationary period, while
another violation of the guideline resulted in a suspension of
per diem duty for a six-month period. 
    15.  Mr. Link testified that if he decided he wanted to work 

[end of page 5]

fewer hours than what he was working per week, he would be able
to with advance notice and approval from Westbrook. 
    16.  Per diem fire/rescue workers work as directed, are
subject to discipline, and are held accountable for their   
actions.
    17.  The disciplinary process for per diems is a progressive
step process that includes a verbal counseling session, a letter
of counsel, and, ultimately, a separation from employment.  The
Director of Public Safety referred to the process as "due
diligence and due process."  Discipline may be administered for
unexcused absences from shifts the per diem fire/rescue worker
has accepted.
    18.  Full-time fire/rescue personnel have a similar
disciplinary process, which includes an investigation of the
complaint, a recommendation to the mayor as to the disposition of
the case, and the mayor's decision.
    19.  The full-time firefighters/rescue personnel have the
option of arbitration under their contract.
    20.  Per diem fire/rescue workers cannot be forced in to
work, while full-time fire/rescue workers can be required to come
in on their off days.
    21.  Hours are limited for per diems in order to avoid having
to pay benefits and overtime for them, as Westbrook is obligated
by contract to do for its full-time fire/rescue personnel.
    22.  The call company only consists of firefighters
or firefighter/EMTs who carry pagers.  The pager tone goes off in
the case of a fire, requesting the call company member to
respond, if able, to the fire.
    23.  Fire/Police call company members have a van, which is a fire/police
unit that has traffic control equipment on it that they use at
the scene of a fire or other emergency.
    24.  In addition to responding to fire calls they may answer,
members of the call company are paid for four hours' work every 

[end of page 6]

week to check their trucks and for scheduled training.  Except
for those four hours, they are not regularly scheduled.
    25.  Call company members do not serve in the capacity of
fire/rescue workers, although many are former fire/EMTs; traffic
control is the sole function they serve.
    26.  On-call fire/rescue workers fill a very different role
than call company members, and respond to requests to fill in for
other fire/rescue workers.
    27.  On-call fire/rescue hours are filled in by full-time
fire/rescue workers and/or by per diem fire/rescue workers,
depending on the particular needs of the department on a given
shift or day.
    28.  Liam Gallagher, the Human Resources Generalist for
Westbrook, testified that he is familiar with the duties and
functions of the Westbrook per diem employees.  Mr. Gallagher
testified that he does not consider per diem fire/rescue workers
as traditional on-call employees.
    29.  The hiring process for full-time fire/rescue workers
begins with advertisements on newspaper websites, the city
website, and the Maine Municipal Association's website.  The
applications are reviewed and the applicants who meet the
requirements desired by the city and collective bargaining
agreement for Firefighter I and II and Paramedic are chosen.  
A written examination, scored by a national testing company,
follows, and the applicants who receive a score of 70 or greater
are allowed to continue.  An interview with the public safety
commission occurs, and those candidates who are approved for
advancement by the commission and the Director of Public Safety
are recommended to the mayor, who is the appointing authority.
    30.  Mr. Pardue testified that the positions for per diem
fire/rescue workers are sometimes filled by word of mouth because
the "highly professional folks" who serve on the Westbrook Fire
Department "know their peers, they know folks that are highly 

[end of page 7]

skilled and might be able to supplement our needs[.]"  These
applicants are interviewed by the deputy fire chief and the
Director of Public Safety, who assess their "skills, knowledge,
and abilities," and then make a recommendation to the mayor, who
is the appointing authority.  There is no psychological test,
drug test, physical exam, or public safety commission interview
when hiring per diems.
    31.  Fire Captain Provencher testified that the per diem
fire/rescue workers have to pass the same physical agility test
as the full-time fire/rescue workers, and that Westbrook is
moving towards the same testing process for the per diems
"because   if we're going to be doing the same job, we should  
have the same process."  Captain Provencher further testified
that aside from the EMS license level, "[t]here is really no
difference in qualifications" in those personnel.  Per diem fire/
rescue workers have the opportunity to advance to full-time
status.
    32.  Full-time fire/rescue workers are required to attain
their firefighter I and II and paramedic certification within 24
months from their date of hire.  With 5 years' experience, they
may apply for the rank of lieutenant.
    33.  Per diem fire/rescue workers are required to attain
their firefighter I and intermediate level EMT certification
within 24 months from their date of hire.  They may not apply for
the position of lieutenant.
    34.  Public safety commission rules allow only full-time 
fire/rescue workers who have served for five or more years to
serve as acting lieutenants.
    35.  The pay scales for full-time fire/rescue workers is much
higher than for per diem fire/rescue workers.
    36.  Full-time fire/rescue workers are paid as follows for
base pay to 21 years of service:

     Unlicensed:         $15.58 - $20.20 per hour
     
[end of page 8]

     Basic:               15.58 -  20.20 per hour
     Intermediate:        16.22 -  20.85 per hour
     Paramedic:           17.16 -  21.77 per hour

    37. Per diem fire/rescue workers are paid as follows for base
pay to 21 years of service:

     Unlicensed:          $9.37 - $12.70 per hour
     Basic:                9.66 -  12.97 per hour
     Intermediate:        10.75 -  13.52 per hour
     Paramedic:           14.07 -  16.83 per hour

    38.  Full-time fire/rescue workers receive a full range of
benefits, including insurance and vacation, while per diem fire/
rescue workers have Social Security and workers' compensation
deducted, and are allowed to participate in an IRA program.
    39.  Both the full-time fire/rescue workers and the per diem
fire/rescue workers have a formal policy for swapping shifts.
                 
                            DISCUSSION

     The issue presented by this case is whether Westbrook's per
diem fire/rescue employees, who currently have no bargaining unit
affiliation, should be recognized and included in the bargaining
unit for the full-time fire/rescue employees.  The petitioner
argues that the unit determination petition should be granted
because the fire/rescue per diem employees have the same duties
and responsibilities, share the same firehouses, drive the same
ambulances and fire trucks, are held to the same standards and
codes of conduct as the full-time fire/rescue employees, and,
thus, share a community of interest with the regular, full-time
fire/rescue employees.  The City of Westbrook argues that the
unit determination petition should be denied because the per diem
fire/rescue workers are on-call employees within the meaning of 
26 M.R.S.A. § 962(G), and, therefore, are excluded from the
definition of public employee.  Because on-call employees are
excluded from the definition of public employee, the City further
argues, the per diems may not be included in a bargaining unit 

[end of page 9]

pursuant to 26 M.R.S.A. § 966(1).

     1.  Are the per diem firefighter/rescue workers on-call
workers within the meaning of 26 M.R.S.A. Sec. 962(G) and,
therefore, excluded from the definition of "public employee?"

     Westbrook argues that the per diem firefighter/rescue
workers are not public employees within the meaning of 26
M.R.S.A. § 962(6)(G) because they are on-call employees.  The
MLRB has held that '"[t]he point of the 'temporary, seasonal, or
on-call' exclusion is to exclude those employees who, because
they work irregularly or sporadically, 'do not have a community
of interest with the permanent, full-time employees in the
unit."'  Council #74, American Federation of State, County and
Municipal Employees, AFL-CIO and County of Knox, MLRB 82-UD-17
(Jan. 18, 1982), citing Town of Berwick and Teamsters Local Union
No. 48, MLRB No. 85-A-05 at 3 (July 24, 1980).  In Council # 74,
matrons served in the same capacity as corrections officers, but
only if either a woman was arrested and detained at the jail
pending bail, or was sentenced to serve a term of incarceration
in that facility.  In the first situation, the matrons were
called in to work from a rotation list maintained at the jail; in
the second situation, the scheduling was on a temporary basis. 
In those instances, the hearing officer concluded, because the
matrons' work duties were contingent on events beyond the control
of the employer and their time worked "sporadic and intermit-
tent," the work was "clearly an on-call system."  Council #74 
at 5. 
     Some of Westbrook's witnesses provided mixed testimony about
the duties of on-call workers with per diem workers and even call
company workers, whose only duties are to show up at a fire scene
to direct traffic.  However, Westbrook's human resources
generalist, Liam Gallagher, testified unequivocally that the per
diem fire/rescue workers were not on-call workers.
     The per diem fire/rescue worker who testified at hearing, 

[end of page 10]

Daniel Link, works a regular 36-hour week, and works the same
schedule every week.  He is a nine-year veteran of the Westbrook
fire department per diem program, and was one of the creators of
the goperdiem program, a template program that is widely used for
scheduling per diems and, according to all who testified
regarding the program, was used up until recently by Westbrook. 
Although there were conflicting testimony and documentary
evidence about whether templating was still being used by
Westbrook, the weight of the evidence indicated that it was still
in use at the time of the hearing or just before the hearing. 
This was supported by its use in Mr. Link's scheduling, testimony
as to its use at the time of the hearing by Captain
Provencher,[fn]2  and evidence in Exhibit W-19, which states,
"EMS per diem personnel wishing to template their scheduled time
will be allowed to do so as long as license requirements match
the schedule needs."  In addition, Chief Michael Pardue called
the process by which per diem fire/rescue workers currently fill
in their time schedules as "offered availability by our per diem
members."   
      What is clear from the evidence presented is that in order
to meet its staffing requirements, the "offered availability" of
the per diems is a necessary component of running Westbrook's
fire department.  Chief Pardue testified that there was still a
need for "sometimes it's two, or oftentimes there's [sic] three
[per diems]   that would be supplementing our career member
staff" on a daily basis.  Unless there is a scheduling conflict,
the "offered availability" is accepted, and is regularly
scheduled for most of the per diem fire/rescue employees on the
per diem roster.
     Based on the evidence in the record, the per diem fire/
rescue workers cannot be considered as "on-call" workers within 

     2  Provencher testified that "[s]everal of the [per diem] members
are on a template, as Dan said."  Transcript, p. 28, l. 2.

[end of page 11]

the meaning of the statute.  More than half of the per diems are
regularly scheduled, and as many work, on average, more than 20
hours per week.  Such work simply can not be classified as
"irregular" or "sporadic."  Council # 74 at 5; Town of Berwick
and Teamsters Local Union No. 48, No. 80-A-05, (MLRB 1980) at 3. 
For these reasons, the hearing examiner finds that the per diem
fire/rescue workers are not on-call workers within the meaning of
26 M.R.S.A. § 966(1).

     2.  Do the per diem fire/rescue employees share a community
of interest with the full-time fire/rescue workers?

     The Teamsters Union Local 340 argues that the per diem fire/
rescue employees share a community of interest with the full-time
fire/rescue employees and, therefore, should be recognized and
included under the collective bargaining agreement for those
full-time fire/rescue employees.  Westbrook argues that the Union
failed to demonstrate that a community of interest exists between
the two groups of fire/rescue employees.
     The Law Court has recognized that there are two fundamental
purposes of the Municipal Public Employees Labor Relations Law:
to protect employees' rights to self-organization, and to promote
the voluntary adjustment of their terms of employment.  Lewiston
Firefighters Ass'n, Local 785, IAFF v. City of Lewiston, 354 A.2d154,
 160 (Me. 1976).  Bargaining units with a clear and
identifiable community of interest are necessary to both of these
objectives.  The Board set forth the extent to which the hearing
examiner must examine the community of interest over 30 years ago
as follows:

     [C]ommunity 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 objectives 
     
[end of page 12]

     and expectations during negotiations can result in con-
     flicts 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, NPER
20-10031 (MLRB Oct. 17, 1979). 
     In order to determine whether employees share the necessary
community of interest in matters subject to collective
bargaining, the follow 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) desire of the affected employees; (10) extent of union
organization; and (11) the employer's organizational structure.
MLRB Rules, Ch. 11, Rule 22(3).
     As set forth in the Findings of Fact in this Report, the
record establishes that the per diem fire/rescue workers share
several of the community of interest factors listed above with
the full-time fire/rescue workers, including, but not limited to,
similarity in the kind of work performed; common supervision;
similarity in many of the qualifications, skills, and training
among the employees; frequency of contact or interchange among
the employees; geographic proximity; and the employer's
organizational structure.     
     Community of interest factors not shared by the fire/rescue
workers include determination of labor relations policy;
similarity in the scale and manner of determining earnings;
similarity in employment benefits, hours of work, and other terms
and conditions of employment; similarity in some qualifications, 

[end of page 13]

skills, and training among employees; and a history of collective
bargaining.  The desire of the affected employees is not clear
from this record.  
     In examining key community of interest factors more closely,
the hearing examiner finds that the most important among the
number of factors the two groups share in common is that all of
these fire/rescue workers carry out the same duties and functions
as a team, working side by side.  As testified to by Daniel Link,
a per diem fire/rescue worker who holds a firefighter I and II
certification and an intermediate level EMS certification,

     My partner on the ambulance is generally, almost 
     always a full-time firefighter, and we perform
     exactly the same jobs; sometimes we switch off on 
     rescue calls; one call I'll drive, the other guy 
     techs; and the next one he drives and I give
     patient care .  

Based on these facts, the key community of interest factors set
forth in AFSCME and City of Brewer have been met.  For that
reason, the hearing examiner finds that there is a community of
interest between the Westbrook per diem fire/rescue workers and
full-time fire/rescue workers.

                              ORDER

     On the basis of the foregoing findings of fact and
discussion, and by virtue of and pursuant to the provisions of 
26 M.R.S.A. § 966, the petition for unit determination filed on
June 26, 2012, by Daniel Walsh on behalf of the per diem
firefighter/rescue workers of the City of Westbrook seeking that
those positions be included in the same bargaining unit with the
full-time firefighter/rescue workers is hereby granted.  
     The following described unit of employees of the City of
Westbrook is held to be appropriate for purposes of collective
bargaining:

[end of page 14]

     INCLUDED:  Firefighter, Firefighter/EMS Provider,
	 			Fire Captain, Fire Lieutenant, Fire
				Inspector, and Part-time Per Diem 
                Firefighter

     EXCLUDED:  All other employees of the City of          
                Westbrook

Dated at Augusta, Maine, this 13th day of February, 2013.


                              MAINE LABOR RELATIONS BOARD


                              
                              ___________________________
                              Gwendolyn D. Thomas
                              Hearing Examiner



     The parties are hereby advised of their right, pursuant to
26 M.R.S.A. Sec. 968(4), to appeal this decision 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 Chapters 10 and 11(30) of the Board Rules. 
                                                       
[end of page 15]