AFSCME, Council 74 and City of Brewer, No. 79-UC-04, aff'd 79-A-01

[STATE OF MAINE]                                   [MAINE LABOR RELATIONS BOARD]      
                                                   [Case No. 79-UC-04]
                                                   [Issued:  February 15, 1979]
A.F.S.C.M.E., AFL-CIO,   )
  and                    )                UNIT CLARIFICATION REPORT
CITY OF BREWER           )
     As the result of the filing of a Petition for Unit Clarification on October
27, 1978 by A.F.S.C.M.E., AFL-CIO, Pine Tree Council No. 74, a unit clarification
hearing was conducted on December 21, 1978 at 9:30 a.m. in the old Bangor High
School, 183 Harlow Street, Bangor, Maine, as provided in the Municipal Public
Employees Labor Relations Act ("Act"), 26 M.R.S.A.  966.
     Present at the hearing for A.F.S.C.M.E., AFL-CIO, Pine Tree Council No. 74
("AFSCME") were:

          H. Ross Ferrell, Jr.            Field Representative,
          Michael Hall                    Witness and Police Corporal,
                                          City of Brewer
          Mark A. Emery                   Witness and Dispatcher,
                                          City of Brewer
     Present at the hearing for the City of Brewer ("City") were:

          Thomas C. Johnston, Esq.        Attorney for the City of Brewer
          Reynold Perry                   Witness and Assistant City Manager,
                                          City of Brewer
          David P. Koman                  Witness and Police Chief,
                                          City of Brewer
          Ronald F. Clark                 Witness and Fire Chief,
                                          City of Brewer
     Also present was the undersigned Attorney/Examiner for the Maine Labor
Relations Board ("Board") in the capacity of hearing examiner, as designated by
the Executive Director of the Board in accordance with 26 M.R.S.A.  966.
     By its petition, AFSCME seeks clarification of an existing unit of police
patrolmen to include employees in the newly-created job classification "dispatcher,"
who perform part of the duties formerly performed by patrolmen, on the grounds
that these changed circumstances call for such a clarification.
     The City opposes the petition both on threshold procedural issues and on the
merits.  It raises the threshold contentions that the petition should be dismissed
(1) under Rule 1.13(A)(a) because the existing unit description is clear and un-
equivocal in that the unit contains only patrolmen, and (2) under Rule 1.13(A)(b)
because the question should properly be settled through the election process.
Finally, on the merits of the claim, the City argues that patrolmen and dispatchers
together would not constitute an appropriate unit under the standards of 26 M.R.S.A.
     I conclude that there is no threshold bar to the consideration of the merits
of the petition.  However, the petition is denied because in this case the dis-
patchers are not appropriately included within the same unit as the patrolmen.
                                 FINDINGS OF FACT
          1.  The City had a collective bargaininq agreement ("Agreement")
              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 time 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 dis-
              patchers.  This was partly due to their intense knowledge of
              and personal involvement with police problems and a correspond-
              ing lack regarding fire problems.  Both Department Chiefs con-
              firmed 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 pro-
              cedures emanating from the Fire Department, 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 are 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 re-
              sponsible for payroll, time cards, vacation scheduling,
              and other personnel matters.  The dispatchers were
              funded through 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, instruction, 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 in-
              signias 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 Dis-
              patchers 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 posi-
              tions are established in the written job descriptions.  They
              are similar but for the fact that patrolmen must complete
              police school and dispatchers 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 patrol-
              men in active crime prevention, patrol, investigation, law
              enforcement, court appearances, etc., keep the patrolmen pre-
              dominantly out of the Public Safety Building and they do not
              come into the building unless 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 communicating 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.
     The traditional purpose of the unit clarification petition is to address the
situation in which some ambiguity or dispute about the inclusion of employees in
an existing bargaining unit has been generated by some change in job structure
such as by the creation of a new job or the change in description of an existing
job or by an accretion. The language of the Act, 26 M.R.S.A. 966(3) establishes
prerequisites for consideration. Those requirements are met herein and are not
disputed.  Board Rule 1.13(A), however, establishes further considerations[fn]1 concern-
ing the propriety of entertaining a unit clarification petition.  These are clearly

  1 The parties agree that this petition is not a work assignment dispute.  Compare
Commonwealth Gas Co., 218 NLRB No. 151, 89 LRRM 1613, 1614 (1975) with Monsanto
Research Corp., 195 NLRB No. 58, 79 LRRM 1457, 1458 (1972).

totally discretionary.  Good sense requires their consideration first since it
may be proper to dismiss a petition without reaching the merits under this Rule.
     The initial inquiry then is of the meaning and application of Board Rule
1.13(A)(a):  "Unit clarification petitions may be denied if (a) the description
of the job categories contained in the bargaining unit is clear and unequivocal
. . . ."      
     If this rule were to be viewed as a matter of form over substance, any new
job title including "dispatcher" would clearly be excluded from the unit as a
function of the title alone.  The mere title name of a job classification is not
the determinative factor in a unit description, however.  It is the actual duties
performed by the employee with the title that are crucial.  Such an important area
of employee rights should not be held hostage to form.  Thus, in Reynolds Metals
Co., 198 NLRB No. 31, 80 LRRM 1529 (1972), "firemen" who had been explicitly ex-
cluded from a unit of guards, were included by way of a unit clarification petition
because, although the title had remained the same, the nature of the job had changed
to that of a guard.
     The substance here is that the job duties of the dispatcher were carved out
of the job of patrolman in toto.  Other imaginable job classifications would
clearly be excluded under the unit description; not the job of dispatcher, however.
     The second inquiry is of the meaning and intent of Rule 1.13(A)(b):  "Unit
clarification petitions may be denied if . . . (b) the question raised should
properly be settled through the election process."  If there were a question con-
cerning representation, see 26 M.R.S.A.  966(3), then the unit could not be
clarified without also conducting an election.  There is no such question.  There
may be unusual situations where this Rule should be invoked even though a question
concerning representation did not exist.  An opportunity for the affected employees
to vote in every case, however, is contrary to the entire concept of a unit clari-
fication.  Moreover, an accretion of employees is commonly held to be appropriate
for inclusion in an existing unit through this process without an election.
     One situation where an election might be proper could be one similar to that
in Libby-Owens Ford v. NLRB, 495 F.2d 1195, 85 LRRM 2668 (3d Cir.), cert. denied,
419 U.S. 998 (1974).  Such is not the case here as is indicated below.
     Thus, the inquiry turns to the merits of the dispute.
     The question is whether it would be more appropriate than not to include these
dispatchers with these patrolmen. If it would, the existing unit would be clari-
fied to specifically include the dispatchers.  If not, dispatchers would have to
be considered separately.
     In this case it would not be more appropriate to include the dispatchers in
the unit.  Moreover, the overriding public interest dictates that the inclusion
not be made.

     Appropriate unit determinations are based on compatibility standards es-
tablished in 26 M.R.S.A.  966(2):
          "[W]hether, in order to insure to employees the fullest
           freedom in exercising the rights guaranteed by this
           chapter and in order to insure a clear and identifiable
           community of interest among employees concerned, the
           unit appropriate for purposes of collective bargaining
           shall be the public employer unit or any subdivision
     This "fullest freedom/community of interest" standard has evolved through
application into the systematic consideration of a number of specific factors.
See Maine Teachers Ass'n and City of Portland, Unit Determination Report (Oct.
20, 1978) [78-UD-40]; Kalamazoo Paper Box Corp., 136 NLRB 134, 49 LRRM 1715, 1716 (1962).
None of these factors is necessarily controlling, rather, a judgmental assessment
of all must be made.
     The significant factors in the conclusion reached herein are the differences
in (a) work type and location, (b) qualification skills, and training, and (c)
retirement benefits.
     Primarily, patrolmen are sworn police officers who perform a unique function
of crime prevention and law enforcement, detailed at great length in the job des-
cription in the record.  These patrol and investigative duties keep them constantly
in public places.  In contrast, dispatchers, who concededly perform a crucial and
significant role in delivering a safe environment to the public, nonetheless re-
main at their communications center at all times.  There is simply no single job
responsibility which is common to both classifications.
     Although there are differences in pay and benefits, most are not significant,
particularly where the difference can be traced to the mere fact of union repre-
sentation.  The difference in retirement provisions, however, is major and presents
a conflict of interest which militates against a community between the two job
     Finally, patrolmen and dispatchers each have different qualifications stem-
ming from the fact that there are specially designated schools at the Maine Criminal
Justice Academy that each must complete.  There is no line of progression between
the two.
     A second, and independent, reason for denying the petition on the merits is
the public interest.  Given the City's history of dispatching problems, police-
fire department personnel friction, the crucial role that dispatchers must fill
in the area of public safety, and the continuing concern about the future of the
public safety in the City, it would be contrary to the public interest to permit
the dispatchers to be in the proposed unit of just patrolmen and dispatchers.
Cf. NLRB v. Delaware - New Jersey Freight Co., 128 F.2d 130 (3d Cir. 1941).
  2 Dispatchers spend approximately 90% of their time dispatching police, and
10% fire; are physically located in the police section of the Public Safety
Building; were trained by police; and have been treated for budget and adminis-
trative purposes as if in the police department.  While these are relevant factors
supporting inclusion, they do not overcome the weight of the factors opposing
inclusion.  Moreover, dispatchers will take on more fire-related responsibilities
as their knowledge of fire problems develops.

     It is a matter of overriding public concern that the Fire Chief have com-
plete confidence in the dispatchers and that they remain neutral in coordinat-
ing, as they must, the needs of both fire and police.
     Thus where there is both a history of problems and a cause for continuing
concern, as here, a unit of patrolmen and dispatchers would not be appropriate.
This is not to say that dispatchers can never be in the same unit as either
police or fire fighters or both.  Depending on the circumstances, such may be
appropriate.  It is not here.
     Having found that the existing unit of patrolmen should not include dis-
patchers, the petition is denied.  SO ORDERED.
Dated at Augusta, Maine this 15th day of February, 1979.
                                         MAINE LABOR RELATIONS BOARD
                                         Michael C. Ryan
                                         Hearing Examiner