AFSCME, Council 74 and City of Brewer, No. 79-A-01, affirming No. 79-UC-04 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-A-01 [Issued: October 17, 1979] _________________________________ ) AMERICAN FEDERATION OF STATE, ) COUNTY MID MUNICIPAL EMPLOYEES, ) AFL-CIO, PINE TREE COUNCIL NO. 74) ) REPORT OF APPELLATE REVIEW OF and ) UNIT CLARIFICATION HEARING ) CITY OF BREWER ) _________________________________) This case originally came to the Maine Labor Relations Board ("Board") by way of a Petition for Unit Clarification filed October 27, 1978 by Pine Tree Council No. 74 of the American Federation of State, County and Municipal Employees, AFL- CIO ("AFSCME"). AFSCME sought in its Petition to include the newly created posi- tion of Dispatcher in an existing bargaining unit composed of the Patrolmen employed by the City of Brewer ("City") Police Department. On December 21, 1978 a Board hearing examiner conducted a unit clarification hearing on the matter, pursuant to 26 M.R.S.A. 966. As a result of this hearing, the hearing examiner issued a Unit Clarification Report on February 15, 1979, finding that the Dispatchers should not be included in the existing unit because they share insufficient community of interest with the Patrolmen, and because public interest considerations militate against such inclusion. The hearing examiner accordingly ordered that the Petition for Unit Clarification be denied. AFSCME filed pursuant to 26 M.R.S.A. 968(4) timely notice of appeal of the Unit Clarification Report. By letter to the Board dated April 12, 1979, the parties agreed to waive hearing and oral argument for the reason that AFSCME's appeal was based solely on alleged errors of law. All briefs on the legal issues raised by the appeal were filed by May 12, 1979. The Board proceeded to deliberate over the appeal at a conference held in Augusta, Maine on September 28, 1979, Chairman Edward H. Keith presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Wallace J. Legge. JURISDICTION Neither party has challenged the jurisdiction of the Maine Labor Relations Board in this matter, and we conclude the Board has jurisdiction to consider the appeal and render a decision and order as provided in 26 M.R.S.A. 968(4). FINDINGS OF FACT Since neither party has disputed the findings of fact made by the hearing examiner, we hereby adopt the findings of fact contained in the Unit Clarifica- ion Report: [-1-] __________________________________________________________________________________ 1. The City had a collective bargaining agreement ("Agree- ment") with AFSCME which expired on January 1, 1979. The Agreement covered a bargaining unit of patrolmen as described in Article I, Section 1 of the Agreement between the City and the Union as follows: "The City recognizes the Union as the sole and exclusive bargaining agent for the regular, full time patrolmen (which term shall be inter- preted to include both male and female police officers, and those full time patrolmen desig- nated as corporal in accordance with Section 5 of Article VI) of the Brewer Police Department excluding Chiefs, Captains, Lieutenants, Ser- geants, Traffic Guides, Special Police, and such other positions that may be established from time to time by the City for the purpose of bargaining with respect to wages, hours, and working condi- tions." (Joint Exhibit 1, page 1) 2. At one time the City had employed civilian dispatchers but discontinued their use prior to the certification of AFSCME in 1971 as bargaining agent for the patrolmen. Patrolmen performed the dispatching duties at the time. In 1977, the City embarked on a program of gradually placing more patrolmen on the street while simultaneously attempting to eliminate problems which had arisen between the Police and Fire Departments with regard to dispatching responsibilities by reestablishing the position of civilian dispatcher. There were four dispatchers employed full time at the time of the hearing. 3. These problems had been of a continuing nature in that the police dispatchers tended to concern themselves primarily with police dispatching problems while at times neglecting the dispatching needs of the fire department and ambulance service. This festering problem came to a head in May, 1976 when a fire in the downtown area, the most serious fire in 5 years, was not brought to the attention of the Brewer Fire Department until 4 hours after other firefighters arrived at the scene. Fire Chief Ronald Clark firmly believes that this was the result of a police orientation on the part of the dispatchers. This was partly due to their intense knowledge of and personal involvement with police problems and a corres- ponding lack regarding fire problems. Both Department Chiefs confirmed that this was a continuing problem. 4. Further problems were created when police dispatchers on occasions did not follow certain procedures which had been established by the Fire Department concerning the dispatch of fire equipment. The testimony revealed that there was some resistance on the part of patrolmen to the idea of having to follow directions or procedures emanating from the Fire Depart- ment, particularly when they did not agree with them. 5. The present dispatchers do the exact job as the patrolmen used to do when there were no dispatchers. It is clear from the job descriptions in evidence and the testimony, however, that the type of work the two perform now is totally different. In short, the patrolmen do typical police work in all its various forms and the dispatchers do no such work. 6. The supervision of the two positions vary. In part because the dispatchers deal with police problems about 90% of the time, the dispatchers take direction primarily from the Police Command duty officer. The Police Chief and Administrative Lieutenant are responsible for payroll, time cards, vacation scheduling, and other personnel matters. The dispatchers were funded through -2- __________________________________________________________________________________ the Police Department Budget in 1977 and 1978 although it is proposed in the 1979 budget that they be included in the Public Safety Building Budget. With regard to job performance, instruc- tion, discipline, training, hiring and firing, however, the Police and Fire Departments exercise joint authority. 7. The dispatchers wear a blue uniform which at one time was worn by policemen; it displays both fire and police insignias on the shoulders. 8. There are some differences in pay scale, fringe benefits and method of determining earnings between the two positions. Most significant is the opportunity for policemen to retire at 50% pay after 25 years regardless of age while the Dispatchers are covered by the Maine Retirement System which requires at a minimum the attainment of the age of 65. The dispatchers are paid in accordance with the City pay plan. Patrolmen are paid in accordance with the Agreement. 9. The qualifications, skills, and training for the two positions are established in the written job descriptions. They are similar but for the fact that patrolmen must complete police school and dis- patchers must complete the dispatch school each provided by the Maine Criminal Justice Academy. There is no line of progression between the two jobs. 10. The dispatcher remains stationary at the communication center for his entire shift. This center is located in the police side of the Public Safety Building. The duties of the patrolmen in active crime prevention, patrol, investigation, law enforcement, court appearances, etc., keep the patrolmen predominantly out of the Public Safety Building and they do not come into the building un- less they have a special reason. If the City had the necessary funds, it would locate dispatchers in a "neutral" geographic location. Of course a portion of the time of both classifications involves com- municating with the other. There are some scheduling differences, for example, dispatchers do not work a "short swing," that is, an occasion of only 8 hours off between two 8-hour shifts. 11. There is evidence of neither the desires of the dispatchers nor the extent of union organization. DECISION The standard by which we review a unit report rendered pursuant to 26 M.R.S.A. 966 is whether the hearing examiner's rulings and determinations "are unlawful, unreasonable, or lacking in any rational factual basis." Teamsters Local 48 and City of Portland, Report of Appellate Review of Unit Determination Hearing at 6 (Feb. 20, 1979). After carefully considering the arguments raised in the parties' briefs, we conclude that the Unit Clarification Report is free of error under this standard. The hearing examiner's determination that there exists insufficient community of interest between the Dispatcher and Patrolmen positions is not erroneous. This determination involved a judgmental assessment by the hearing examiner of a number of relevant criteria. Among these relevant criteria are such factors as (1) simi- larity in the kind of work performed; (2) common supervision and determination of labor-relations policy; (3) similarity in the scale and manner of determining earn- ings; (4) similarity in employment benefits, hours of work and other terms and con- ditions of employment; (5) similarity in the qualifications, skills and training of -3- __________________________________________________________________________________ employees; (6) frequency of contact or interchange amonq the employees; (7) geo- graphic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organizational structure. See, e.g., Maine Teachers Association and City of Portland, Unit Determination Report at 3-4 (Oct. 20, 1978) [No. 78-UD-40 & 79-UD-02]. 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 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. In light of these considerations, the hearing examiner's determination that the differences in job duties, qualifications, training, job location, and retirement benefits negated the required community of interest plainly is correct. While there are some minor similarities between the Dispatcher and Patrolmen positions, these similarities clearly are outweighed by these differences. The fact that the Dispatchers perform duties formerly performed by the Patrol- men does not ipso facto establish that the Dispatchers must be part of the existing unit. As discussed above, whether the Dispatchers should be included in the Patrol- men's unit depends on the assessment of the degree of community of interest between the two positions. This assessment is made on a case-by-case basis, in which no one factor necessarily is conclusive. Because all relevant criteria must be considered, the Dispatchers are not "automatically" part of the existing unit merely because they perform work formerly performed by unit members. The hearing examiner also committed no error by finding that public interest considerations dictate that the Dispatchers not be included in the Patrolmen's unit. The policy consideration on which the hearing examiner relied was the history of neglect by dispatchers of the dispatching needs of the City's Fire Department and ambulance service. Inclusion of the Dispatchers in the Patrolmen's unit, the hear- ing examiner concluded, could serve to continue the serious problems caused by this neglect. The hearing examiner accordingly ruled that public interest considerations made inclusion of the Dispatchers in the unit inappropriate. This ruling was entirely proper and reasonable. While public policy considera- tions may not be conclusive, they are always pertinent in a hearing examiner's deter- mination of a bargaining unit dispute. Indeed, a failure to consider any important public interest considerations could result in an unreasonable ruling, which would be subject to Board modification or reversal. We also note that even if the hearing examiner had erred in his public interest finding, we could not reverse the hearing examiner's order in light of his correct, independent finding on the community of interest point. We also cannot agree with AFSCME's argument that the integrity of the existing unit and the employees' rights to bargain are threatened by the hearing examiner's -4- __________________________________________________________________________________ rulings. The Patrolmen's unit remains unaffected by the rulings. The composition of the unit has not been altered, and unit membors will continue to enjoy all bar- gaining rights and protections provided by the law. The rulings also have no effect on the Dispatchers' rights to organize and bargain collectively, if they choose to do so. The proper procedure for the Dispatchers to follow is to file a petition for unit determination pursuant to 26 M.R.S.A. 966, and a petition for election pursuant to 26 M.R.S.A. 967(2). Once a bargaining agent for the Dispatchers has been recog- nized or certified, the Dispatchers may bargain fully over all their terms and condi- tions of employment. In light of these circumstances, we fail to see how any employ- ee's bargaining rights are threatened by the Unit Clarification Report. One contention by the City deserves coninent. This is the argument that the hearing examiner should have denied the Petition under Rule 1.13(A) of the Board's Rules and Procedures without reaching the merits. This argument overlooks the fact that application of Rule 1.13(A), which sets forth the instances when unit clarification petitions may be denied, is within the discretion of the hearing examiner. Particular- ly where, as here, the employer creates a new position to perform work formerly per- formed by unit members is the hearing examiner warranted in proceeding to a complete and thorough consideration of the merits of the petition. The hearing examiner com- mitted no error by failing to evoke Rule 1.13(A) to deny the Petition. Having found that the Unit Clarification Report contains no error, we must affirm the Report and deny AFSCME's appeal. ORDER On the basis of the foregoing findings of fact and decision and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4), it is ORDERED: That the February 15, 1979 Unit Clarification Report is AFFIRMED in all respects. AFSCME's appeal of the Unit Clarification Report is DENIED. Dated at Augusta, Maine this 17th day of October, 1979. MAINE LABOR RELATIONS BOARD /s/_________________________________ Edward H. Keith Chairman /s/_________________________________ Don R. Ziegenbein Employer Representative /s/_________________________________ Wallace J. Legge Employee Representatve -5- __________________________________________________________________________________