Teamsters Local 48 and City of Portland, No. 78-A-10, affirming No. 78-UD-39

STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                     MLRB No. 78-A-10
                                                     [Issued:  February 20, 1979]
     
_____________________________     
                             )
TEAMSTERS LOCAL UNION NO. 48,)
STATE, COUNTY, MUNICIPAL AND )
UNIVERSITY EMPLOYEES         )
                             )              REPORT OF APPELLATE REVIEW OF
  and                        )               UNIT DETERMINATION HEARING
                             )
CITY OF PORTLAND             )
_____________________________)     
     
     
     This case originally came to the Maine Labor Relations Board ("Board") by
way of a Petition for Appropriate Unit Determination filed May 31, 1978 by
Richard R. Peluso, International Trustee, Teamsters Local Union No. 48 ("Local
No. 48").  By its Petition, Local No. 48 sought formation of a proposed bargain-
ing unit composed of certain Division Heads employed in the City of Portland's
("City") Parks and Recreation, Public Works, and Aviation and Public Buildings
Departments.
     
     On August 30, 1978, a hearing examiner for the Board conducted a unit determ-
ination hearing on the matter, pursuant to 26 M.R.S.A.  966.  No witnesses or
documentary evidence were presented by Local No. 48 at this hearing.  The repre-
sentative for Local No. 48 present at the hearing stated to the hearing examiner
that in the event the hearing examiner's report of the hearing was appealed to
the full Board, Local No. 48 would subpoena several witnesses to testify at the
appellate hearing.  The City presented three witnesses and documentary evidence
during the hearing, and submitted the testimony of a fourth witness by affidavit
subsequent to the hearing.
     
     On September 13, 1978 the hearing examiner issued his Unit Determination
Report on the proceeding.  The hearing examiner ruled in the Report that the
Division Head classifications were not appropriate for inclusion in the proposed
bargaining unit because the employees holding these classifications were exempted
from the definition of "public employee" in the Municipal Public Employees Labor
Relations Act, 26 M.R.S.A.  961, et seq., ("Act"), by Section 962(6)(C) and (D)
of the Act.  The hearing examiner accordingly ordered that Local No. 48's Petition
for Unit Determination be dismissed.
     
     Local No. 48 appealed this Unit Determination Report pursuant to 26 M.R.S.A.
 968(4) by filing a timely notice of appeal on September 22, 1978.  The Board
commenced a hearing on the appeal on November 20, 1978 in Portland, Maine,
Alternate Chairman Donald W. Webber presiding, with Employer Representative Paul D.
Emery and Employee Representative Michael Schoonjans.
     
     Present at the hearing for Local No. 48 were:

          Jonathan G. Axeirod, Esq.            Counsel for Local No. 48
          Robert L. Maier                      Representative of Local No. 48
          Eight Division Heads employed
          by the City who were potential
          witnesses

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     Present for the City were:

          James J. Purcell , Esq.              Counsel for the City
          Michael C. Wing                      Assistant City Manager
          Gloria L. Thomas                     Labor Relations Administrator
                                                for the City
     
     Counsel for Local No. 48 contended in his opening statement that the hearing
examiner erred in his Report by finding that the Division Heads were exempted from
the Act's definition of "public employee."  Counsel for the City in his opening
statement presented two motions.  First, counsel moved that the notice of appeal
be dismissed on the ground that Local No. 48 lacked standing to appeal because,
having failed to present any evidence in support of its Petition before the hear-
ing examiner, Local No. 48 was not "aggrieved" by the hearing examiner's Report
within the meaning of Section 968(4) of the Act.  Second, counsel for the City
moved to exclude all evidence which Local No. 48 might seek to offer at the
appellate hearing before the Board, on the ground that such evidence was inadmis-
sible because it had not been presented at the unit determination hearing.
    
     At the close of the opening statements, the parties agreed that the Board
could decide the City's motions before proceeding with the hearing.  The Board
accordingly continued the hearing, and set a briefing schedule on the motions.
All briefs were received by January 12, 1979, and the Board proceeded to deliberate
over the case at a conference held in Portland, Maine on February 5, 1979.
   

                                  FINDINGS OF FACT
     
     After reviewing the record of the November 20, 1978 appellate hearing and the
September 13, 1978 Unit Determination Report, we find that:
     
     1.  On May 31, 1978 a Petition for Appropriate Unit Determination
         was filed with the Board by Local No. 48.  The Petition alleges
         that certain Division Head job classifications in the City of
         Portland's Parks and Recreation, Public Works, and Aviation and
         Public Buildinqs Departments are appropriate for inclusion in a
         proposed bargaining unit.  A unit determination hearing concern-
         ing the Petition was held on August 30, 1978.
     
     2.  Local No. 48 presented no testimony or documentary evidence
         regarding the Petition at the August 30, 1978 unit determination
         hearing.  The City presented the testimony of three witnesses and
         offered documentary evidence at the hearing, and subsequently
         submitted the testimony of a fourth witness by affidavit.

     3.  The Unit Determination Report on this matter was issued September
         13, 1978, finding that the Division Head job classifications were
         not appropriate for inclusion in the bargaining unit because the
         Division Heads are exempted from the Act's definition of "public
         employee" by 26 M.R.S.A.  962(6)(C) and (D), and ordering that
         the Petition for Unit Determination be dismissed.
     
     4.  Local No. 48's notice of appeal of the September 13, 1978 Unit
         Determination Report was timely filed on September 22, 1978.

     5.  At the appellate hearing on this matter convened on November 20,
         1978, counsel for the City in his opening remarks moved that the
         notice of appeal be dismissed and that all evidence which Local
         No. 48 sought to offer be declared inadmissable and excluded from
         the record. The parties agreed that the Board could decide these
         motions before proceeding with the appellate hearing.

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                                    DISCUSSION

     After carefully reviewing the record of the November 20, 1978 appellate hearing,
the September 13, 1978 Unit Determination Report, the applicable statutory provisions,
and the parties' briefs, we are of the opinion, for the reasons discussed below, that
the City's motion to dismiss must be denied and the motion to exclude new evidence
granted.  Because Local No. 48 would not be able to present any evidence at an appel-
late hearing before the Board, and because the hearing examiner correctly found on
the record before him that the Division Heads are excepted from the Act's definition
of "public employee," we will not schedule an appellate hearing on the merits of the
appeal but will instead affirm the September 13, 1978 Unit Determination Report and
deny Local No. 48's notice of appeal.

     1.  The Motion to Dismiss.  We cannot agree with the City's argument in its
brief that Local No. 48 lacks standinq to prosecute this appeal because it failed to
present any evidence at the August 30, 1978 unit determination hearing.  Section 968
(4) of the Act provides in pertinent part that "Any party aggrieved by any ruling or
determination of the executive director, or his designee, under sections 966 and 967
may appeal . . ."  Here the hearing examiner ruled pursuant to Section 966 that the
job classifications proposed to be included in the bargaininq unit were not appro-
priate for inclusion in a bargaining unit, and dismissed Local No. 48's Petition for
Unit Determination.  Such rulings clearly made Local No. 48 an aggrieved party within
the meaning of Section 968(4), thereby conferring standing upon Local No. 48 to appeal
the hearing examiner's report.

     There is no requirement in Section 968(4) or in any other provision of the Act
that the union (or the public employer) offer evidence at a unit determination hearing.
The standard procedure at a unit determination hearing is for the union to offer evi-
dence showing why a disputed job classification is appropriate for inclusion in the
proposed bargaining unit, while the public employer presents evidence showing why in-
clusion of the disputed classification would be inappropriate.  A union could chose
not to offer evidence at the hearing, hoping that the employer also does not present
evidence and that the hearing examiner accepts a presumption that the disputed classi-
fication is appropriate for inclusion, or that the evidence offered by the employer
will not be sufficient to show that the disputed classification is inappropriate for
inclusion.

     The risk taken by a party which does not offer evidence at a unit determination
hearing is that the hearing examiner's report will be appealed.  As will be discussed,
infra, the parties at the appellate hearing before the Board are precluded from pre-
senting any evidence which was not offered at the unit determination hearing. A party
which did not offer evidence at the unit determination hearing may on appeal attempt
to rebut the opposing party's case or prove that the hearing examiner committed error
by cross-examining the opposing party's witnesses and/or submitting oral or written
arguments, however.  In short, while a party may run certain risks by not offering
evidence at a unit determination hearing, one of these risks is not that the party
cannot be "aggrieved" by the hearing examiner's report within the meaning of Section 968(4).

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     We do not read McNichols v. York Beach Village Corp., Law Docket No. Yor-
77-8 (Nov. 15, 1978) as requiring a finding that Local No. 48 lacks standing to
prosecute this appeal.  In McNichols, a civil case involving a challenge to the
constitutionality of a village ordinance, the Law Court held that a plaintiff's
failure to appear at trial or otherwise prove he was affected by the ordinance
caused plaintiff to lose his standing to appeal to the Law Court.  We do not be-
lieve that this holding is applicable to a petitioner for a unit determination
under 26 M.R.S.A.  966.  As argued by Local No. 48 on brief, a plaintiff in a
civil case carries the burden of proof, while a petitioner under Section 966 is
subject to "no burdens of proof."  Rule 1.09(0) of the Board's Rules and Pro-
cedures.  Because the petitioner at a unit determination hearing, unlike a plain-
tiff at a civil trial, does not carry a burden of proof, the petitioner's failure
to present evidence at the hearing is not fatal to the petitioner's right to
appeal to the Board, so long as the petitioner is aggrieved by the hearing examiner's
report.  We consequently conclude that the Law Court's holding in McNichols is in-
apposite to appeals from rulinqs rendered pursuant to 26 M.R.S.A.  966.
     
     For all of the foregoing reasons, the City's motion to dismiss Local No.
48's notice of appeal is hereby DENIED.
     
     2.  The Motion to Exclude Evidence.  Much more meritorious than the motion
to dismiss is the City's motion to exclude evidence.  The City's argument regard-
ing the motion to exclude essentially is that Local No. 48 is not entitled under
the Act to a de novo hearing on appeal, and that any evidence which Local No. 48
seeks to introduce on appeal therefore is inadmissable, since no evidence was of-
fered by Local No. 48 at the unit determination hearing.  Local No. 48 does not
contest this argument by the City, but, instead, consistent with its position at
a previous appeal before this Board, joins with the City in arguing that evidence
not offered at the unit determination hearing is inadmissible on appeal.  Counsel
for Local No. 48 stated at the November 20, 1978 hearing and in his brief that
Local No. 48 will voluntarily withdraw its notice of appeal should we rule that
evidence not offered at the unit determination hearing is inadmissible at the
appellate hearing before the Board.
     
     The provisions of the Act which set forth the procedures for determining
bargaining unit questions clearly do not entitle parties to a de novo evidentiary
hearing on appeal to the Board.  Because we are limited under the Act to review-
ing the evidence offered to the hearing examiner, we will grant the City's motion
to exclude on appeal all evidence which was not offered at the unit determination
hearing.
     
     Under the Act, it is the hearing examiner and not the full Board who is dele-
gated the primary responsibility for deciding disputes regarding bargaining unit
matters.  Section 966(1) of the Act provides in part that in the event of a dis-
pute over the appropriateness of a unit or over whether a supervisory or other
position should be included in the unit, "the executive director or his designee
[i.e., the hearing examiner] shall make the determination . . ." (emphasis
supplied).  To aid in this determination, the Legislature has provided the hearing
examiner in Section 966(1) with the same powers provided the full Board for deciding

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prohibited practice cases, i.e., the powers to administer oaths and to subpoena
witnesses, books, records and other evidence pertinent to the issues raised.
     
     As noted, supra, Section 968(4) of the Act provides the right to appeal a
hearing examiner's report to a party aggrieved by the report.  That Section
states that upon the receipt of an appeal, the Board shall conduct a hearing in
the manner specified in Section 968(5)(B), which provides that the parties to a
hearing have the right to give testimony.  Section 968(4) also provides that
after the hearing, the Board shall issue a decision which "shall either affirm
or modify the ruling or determination of the executive director and specify
the reasons for such action."  The appellate hearing conducted by the Board
pursuant to Section 968(4) thus is for the purpose of reviewing the hearing
examiner's rulings and determinations, and either affirming or modifying these
rulings and determinations.
     
     In ascertaining whether the hearing examiner's rulings and determinations
should be affirmed or modified, the Board's task is to review the evidence upon
which the hearing examiner based his decisions.  New evidence not offered to
the hearing examiner clearly is inadmissible for purposes of this review.  There
is nothing in Section 968(4) or (5) or in any other provision of the Act which
suggests that the Board when hearing an appeal of a unit determination report
may conduct a de novo hearing and admit new evidence not offered at the unit
determination hearing.  Such new evidence obviously could distort our review
of the hearing examiner's report.  Since the unit determination hearing is the
only evidentiary hearing on unit matters provided for in the Act, it would obviously
offend both the provisions of the Act and common sense to suppose that a party
was entitled to two evidentiary hearings on a bargaining unit dispute - one before
the hearing examiner and the second before the full Board.  Thus, as we held in
our Report of Appellate Review of Unit Determination Hearing in Brunswick Ass'n
of Paraprofessionals and Non-Teaching Personnel and Brunswick Superintending
School Comm. (1975) [No. 75-A-03]:
     
     ". . . we believe that the appeal procedure, authorized in
       968,  4, of the Act, should be based on a clear and
      thorough review of the evidence adduced at the hearing
      before the Executive Director.  To hold otherwise would
      open the appeal procedure to a continuous and never-ending
      flow of new allegations.  Our charge is to review the
      Unit Determination Report of the Executive Director pur-
      suant to the provisions of  968,  4, of the Public
      Employees Labor Relations Act and, under that authority,
      we must look at the facts and evidence made available to
      the Executive Director when he acted as a hearing examiner
      pursuant to  966 of the Act."
     
     An important policy consideration which supports the procedures for determin-
ing bargaining unit questions set forth in the Act is that it would be a waste of
time and resources for the Board to be primarily responsible for determining each
and every bargaining unit question which arises.  In terms of expediency and ef-
ficiency, such determinations are best made at the administrative level, subject
to limited review by the full Board.  This is the procedure followed by the
National Labor Relations Board and by most public sector labor boards in the
country.  If the full Board were primarily responsible for making these determina-
tions, resolution of our already over-burdened prohibited practice complaint docket

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would become hopelessly delayed.
     
     In addition, the procedures set forth in the Act also have the beneficial
effect of establishing a time certain at which the parties must be prepared to
present their complete case regarding a dispute over a unit matter, i.e., at the
unit determination hearing.  Because the Board will not admit new evidence not
offered at the unit determination hearing, there should be no incentive for the
parties to use the unit determination hearing to "feel out" the opposing party's
case or, subsequent to the unit determination hearing, to attempt to "create a
record" for use on appeal to fill gaps made evident at the evidentiary hearing.
     
     The record which we review on an appeal pursuant to Section 968(4) of the
Act is the unit determination report itself, any documentary evidence offered
to the hearing examiner, any admissible testimony introduced at the appellate
hearing, and any briefs filed by the parties on appeal.  It is standard procedure
for the unit determination report to contain the names of the witnesses who testi-
fied at the hearing, a description of the documents offered into evidence, and a
discussion of the relevant facts and the issues of the case as perceived by the
hearing examiner.  We thus are able to determine by examining the unit determination
report the witnesses who appeared at the hearing, the documents which were offered
as exhibits, and the issues which were raised by the parties.
    
     The standard of review which we apply in an appeal under Section 968(4) of
the Act is whether the hearing examiner's rulings and determinations are unlawful,
unreasonable, or lacking in any rational factual basis. In the case where a party
contends that the hearing examiner ignored or misinterpreted relevant facts, the
parties may at the appellate hearing present witnesses who testified at the unit
determination hearing to testify regarding the claim of factual error.  When a
party does not allege factual error but contends that the hearing examiner com-
mitted an error of law, the parties may waive the appellate hearing and submit
their legal arguments to the Board on brief.
     
     We recognize that on rare occasions there may be a legitimate reason why a
party did not offer a particular witness or document at the unit determination
hearing.  If the party is able to show adequate cause justifying the failure to
offer the evidence at the original hearing, then the evidence is admitted at the
appellate hearing.  Mere lack of preparation or failure to examine all potential
witnesses or files prior to the unit determination hearing does not constitute
adequate cause.
     
     It also is possible on rare occasions that a party may be surprised by a
position of the opposing party at a unit determination hearing (i.e., the union
alleges that a job classification not listed in its petition is appropriate for
inclusion in the proposed unit, or the employer raises a previously undisclosed
objection to the proposed unit).  In such a case, the hearing examiner may in
his discretion continue the hearing for a short period of time so that the
surprised party may prepare its evidence on the point which caused the surprise.
We believe that the best way to avoid the problem of surprise is for the parties

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to contact each other prior to the unit determination hearing for the purpose
of discussing the job classifications proposed to be included in the unit,
as well as any objections to the unit as proposed.  We expect parties prior
to the unit determination hearing to discuss maturely and responsibly in a
forthright fashion all matters which may be raised at the hearing. In the
case where a party fails to contact the opposing party prior to the hearing
and alleges surprise at the hearing, we believe it to be questionable whether
the hearing examiner should grant a continuance of the hearing.

     Having found that Local No. 48 is not entitled under the Act to a de novo
trial on appeal, we hereby GRANT the City's motion to exclude any evidence
which was not offered at the August 30, 1978 unit determination hearing.  Because
Local No. 48 would not be able to introduce any new evidence at an appellate
hearing, we conclude that there is no purpose to be served by scheduling such a
hearing.  After examining the documentary evidence submitted by the City at
the unit determination hearing and the facts set forth in the September 13, 1978
Unit Determination Report, we find that the hearing examiner correctly ruled
that the Division Heads are not  public employees within the meaning of the Act,
and that Local No. 48's Petition for Unit Determination accordingly must be
dismissed.  We consequently affirm the September 13, 1978 Unit Determination
Report, and order that Local No. 48's notice of appeal filed September 22, 1978
is DENIED.

Dated at Augusta, Maine this 20th day of February, 1979.

                                           MAINE LABOR RELATIONS BOARD

 
                                           /s/_________________________________
                                           Donald W. Webber
                                           Alternate Chairman


                                           /s/_________________________________
                                           Paul D. Emery
                                           Employer Representative


                                           /s/_________________________________
                                           Michael Schoonjans
                                           Employee Representative

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