City of Bangor and Local 1599, IAFF, No. 80-UD-15, aff'd 80-A-03

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD     
                                                   [Case No. 80-UD-15]
                                                   [Issued:  February 1, 1980]

CITY OF BANGOR                )
                              )                 UNIT DETERMINATION
     and                      )
                              )                       REPORT
     As the result of the filing of a Petition for Unit Determination filed by
John R. Perry, Personnel Director, on behalf of the City of Bangor on November 1,
1979, a hearing was conducted on December 27, 1979, in the First Floor Conference
Room, City Hall, Bangor, Maine, as provided in 26 MRSA Section 966.
     Present at the hearing for the petitioner were:

          Malcolm E. Morrell, Jr., Esquire     Attorney for the City of Bangor
          John R. Perry                        Personnel Director, City of Bangor
          James L. McKenzie                    Chief, Bangor Fire Department
     Present for Local 1599, International Association of Fire Fighters (AFL-CIO),

          Phillip D. Buckley, Esquire          Attorney for Local 1599
          Willaim E. Leighton                  Lieutenant, Bangor Fire Department
                                               and President of Local 1599
          James C. Cook                        Fire Fighter, Bangor Fire
     Also present was the undersigned, Robert I. Goldman, hearing examiner, as
designee of the executive director of the Maine Labor Relations Board.
     By its petition the City of Bangor (City) seeks to exclude the positions of
Fire Captain and Fire Lieutenant from a bargaining unit which currently consists
of all uniformed employees of the Bangor Fire Department, including Dispatchers
and Mechanic, excepting only the Fire Chief, the Assistant Chiefs and temporary
     It is the City's position that the Fire Captains and Fire Lieutenants are
supervisors as defined in Section 966(1) of the Public Employees Labor Relations
Act (the Act) and therefore should be excluded from the unit of non-supervisory
employees.[fn]1  Local 1599, International Association of Fire Fighters (AFL-CIO)
     1 Section 966(1) of the Act provides:
           "In determining whether a supervisory position should be
            excluded from the proposed bargaining unit, the executive
            director or his designee shall consider, among other cri-
            teria, if the principal functions of the position are
            characterized by performing such management control duties
            as scheduling, assigning, overseeing and reviewing the
            work of subordinate employees, or performing such duties
            as are distinct and dissimilar from those performed by the
            employees supervised, or exercising judgment in adjusting
            grievances, applying other established personnel policies
            and procedures and in enforcing a collective bargaining
            agreement or establishing or participating in the estab-
            lishment of performance standards for subordinate employees
            and taking corrective measures to implement those standards."
     The City makes no claim that any of the Captains or Lieutenants are confi-
dential employees or otherwise excluded from coverage of the Act pursuant to
Section 962(6).  Also the Petitioner has made no claim that individual Captains
or Lieutenants should be excluded if the claim for class exclusion should fail.


(Local 1599) opposed the petition.  The Fire Captains and Fire Lieutenants have
been included in a single over-all unit with Fire Fighters since at least 1966,
when Local 1599 was first certified as the collective bargaining agent.  Successive
collective bargaining contracts have been consummated between the City and Local
1599 from that time through 1979.  The latest contract was for a two-year period
beginning January 1, 1978, and terminating December 31, 1979, and the parties are
now engaged in negotiations for a successor agreement.  Prior to the instant petition,
neither the City nor others have challenged the inclusion of the Captains and
Lieutenants in an over-all unit with Fire Fighters.  As a matter of fact, in 1974
the City filed a Petition for Appropriate Unit Determination in which it sought to
have the Dispatcher and Mechanic positions excluded from the unit of Fire Fighters.
The Executive Director, acting as hearing examiner in the matter, found that a
substantial community of interest between the Mechanic, Dispatchers and Fire
Fighters warranted a continuation of the all-inclusive bargaining unit and denied
the petition for exclusion.[fn]2
     In the instant matter the hearing examiner finds that the petition of the
City to exclude Fire Captains and Fire Lieutenants from the over-all unit which
includes Fire Fighters, Dispatchers and Mechanic should be denied for the reasons
set forth below.
     The evidence taken at the hearing does not support the proposition that, as
a body, the Captains and Lieutenants should be extracted from the inclusive unit
with Fire Fighters, Dispatchers and Mechanic which was existed for over thirteen
years, despite the fact that many of the Captains and Lieutenants exercise some
aspects of supervisory authority over Fire Fighters.  Units which include both
fire fighters and officers are not uncommon in this state, and furthermore the
Act does not require that supervisors and those they supervise should necessarily
     2 City of Bangor and Local 1599, International Association of Fire Fighters.
Unit Determination Report, December 31, 1974 [75-UD-19]. It is open to question whether a
Petition for Unit Determination is a proper way for an Employer to raise unit
questions of this type.  Unit Clarification procedures are available to Employers
and incumbent bargaining agents, and a change of circumstances surrounding for-
mation of the existing bargaining unit must be alleged to have changed suffi-
ciently to warrant modification.  In the instant matter the Employer has not
claimed a change of circumstances surrounding formation of the bargaining unit.
See Section 966(3) Unit Clarification.  Unit Clarification is not available to
employees in the bargaining unit or to others.
     However, if this matter were to have been treated as a Unit Clarification
rather than Unit Determination, the result would be the same for want of asserting
and successfully showing any change in circumstances.  It should be noted that
the Unit Clarification provision did not become part of the statute until 1975
and was not available to parties at the time the Unit Determination petition
regarding Dispatchers and Mechanic was filed by the City in November 1974.
See Chapter 697, P.L. 1975.
     Since this matter was brought to the Board by way of Unit Determination,
the hearing officer has treated it as such and has applied the standards appli-
cable to Unit Determination proceedings.


form separate units.[fn]3

     The testimony at the hearing did not evidence any special or significant
problems affecting the efficient operation of the Department, the maintenance of
discipline, or the effective administration of the collective bargaining agree-
ment because officers and Fire Fighters are joined in a common unit.  Indeed, the
only note of dissatisfaction or disharmony concerned a prevalent unhappiness
during the last negotiations with respect to differential in wage scales.  However,
unhappiness of a group of employees with the result of wage negotiations is not a
basis in itself for permitting separation from an otherwise appropriate unit.
The Captains and Lieutenants comprise an appreciable segment of the bargaining
unit and it reasonably can be expected that their special needs can be adequately
projected and protected in future contract negotiations, albeit some healthy give
and take within the bargaining unit may be involved.[fn]4
     The current complement of the Fire Department Consists of the Fire Chief,
four Assistant Chiefs, five Fire Captains (there being an additional vacancy),
thirteen Lieutenants and 83 Fire Fighters.  All Fire Fighters are privates;
there is no Sergeant or Corporal rank.  There are also three Dispatchers and
one Mechanic.  The Central Fire Station on Main Street houses two fire companies
and the Chief and Assistant Chiefs have offices there.  Three Captains and four
Lieutenants are also located in the Central Station.  One of the Captains serves
     3 See City of Lewiston and Hot Lunch Workers' Unit, Unit Clarification Report,
December 19, 1978 [79-UC-03]; see also Employees of the City of Philadelphia (Fire Department),
844 GERR 21 (Jan. 14, 1980).  Employer Exhibit C-5 is a copy of a petition which
contains signatures of most of the Captains and Lieutenants and which was offered
as evidence of their interest in disassociating from the common unit with Fire
Fighters.  The language of that petition, however, states that the employees
desire to "know [sic] longer be represented by said Local after the expiration
of the present contract. . . ."  Whether the petition is an expression of desire
to separate from the bargaining unit or simply an expression of disaffection with
the current bargaining representative, the result of this proceeding would be the
     If a group of disaffected employees were interested in altering an existing
bargaining unit structure, it would appear that the Unit Determination process
would be a logical option for them.  Such a petition would be subject to the stan-
dards and conditions contained in the Act and in the Rules and Procedures of the
Board.  Of course, voluntary agreement and the decertification process would pre-
sent other possibilities, depending upon the circumstances.  Given a relatively
stable bargaining history, it would seem that those seeking a separate identity
would have to show a distinct community of interest from others in the unit.
     4 There was testimony that certain regular Fire Fighters were intent on
retaliating against the Captains and Lieutenants for having involved themselves
in the petition effort.  When the retaliation talk surfaced the President of
Local 1599 (who is a Lieutenant) and a leader of the petition drive to oust
Local 1599 (also a Lieutenant) discussed the alleged threat, and thereafter
a meeting of the Fire Fighters was called and it was made clear that such views
were irresponsible and inappropriate.  That quick and forceful response apparently
squelched any notions of retaliation and is an example of the leadership qualities
and maturity that are sometimes required in dealing with potentially damaging
intra-organizational difficulties.

full time as Fire Prevention officer.  Fifty to fifty-five Fire Fighters and the
Dispatchers and Mechanic also are assigned to the Central Station.
     In addition to the companies at the Central Station, there are three outlying
stations, each under the charge of a Captain.  In the outlying stations there is
one officer on duty at all times and, typically, four Fire Fighters.  Representative
is Station 6 (Center Street) which has 14 people assigned to it.  Of these, 10
are Fire Fighters; there are 3 Lieutenants; and a Station Captain in charge.  The
Department operates on a two-shift basis--8 a.m. to 6 p.m. and 6 p.m. to 8 a.m.
Officers and Fire Fighters are on a 9-week rotating cycle.  The Chief works a
regular work week.  Assistant Chiefs work the same schedule as Captains and
     Privates wear a distinctive uniform from officers.  Assistant Chiefs, Captains
and Lieutenants wear similar uniforms and wear blue shirts.  The Chief also has
a distinctive uniform and wears white shirts.
     Beginning January 1st, 1979, through December 31, 1979, the pay schedule for
the Department was as follows:
                                Range    Step    Step   Step    Step      Step
Class Code    Class Title       Number      A       B      C       D         E

   401       Fire Dispatcher    12F      4.13    4.28    4.44    4.63     4.82

   402       Fire Equipment
             Mechanic           l5F    208.01  215.34  222.67  231.24   241.02

   403       Fire Prevention
             Inspector          18F    238.16  247.30  255.30  264.43   273.57

   405       Fire Fighter       14F    191.19  198.05  204.90  213.85   223.86

   407       Fire Lieutenant    l6F                    235.01  244.15   252.15
   409       Fire Captain       18F                            264.43   273.57
    (In addition to the adjustments above those members of the department who
were in the step plan from A to D were eligible for a merit increase on their
anniversary date.)
    There was some testimony that the Lieutenants at the Central Station make
out the "Running List," assign men as per the schedule, supervise cleaning and
provide training.  The officer on duty reads roll call, posts assignment sheets,
sees that gear is placed on vehicles, makes sure equipment is checked and sees
that maintenance is performed.  Typically, neither Captains nor Lieutenants engage
in common cleaning routines.  The testimony did not disclose that the foregoing
duties were performed with the frequency or intensity necessary to meet the
"principal functions" test contained in Section 966(1).
    There was testimony to also show that a Captain in an outlying station is
generally responsible for the station and its general maintenance.  He may make
particular assignments consistent with the station schedule.  He and Lieutenants
at the station conduct regular training sessions and post-fire critiques at which
attendance is mandatory.  He may recommend transfer of personnel; one witness

remembered an instance of this.  He maintains records and logs for the station.
He works a regular shift and there are usually five men on duty at all times--
4 Fire Fighters and an officer.  Normally a Lieutenant is not on duty on the same
shift with the Captain.  On occasion a Captain or Lieutenant may hire an extra
person from the off-duty list to replace absentees; however, this normally would
require clearance from the Assistant Chief on duty.
     In case of problems--personnel or otherwise--the Lieutenant may try to handle
the problem himself and when unsuccessful will go to the Captain.  A Captain may
grant a compensatory day off if an extra man is available.  At the Central Station,
the Chief or Assistant Chief usually has final authority in granting compensatory
requests.  In outside stations a Captain or Lieutenant can approve substitution of
one man for another in a given shift schedule, although this is frequently arranged
informally between Fire Fighters themselves without the necessary intervention of
an officer.  In case of repeated lateness or in case of absences the matter is
referred to the Chief or Assistant Chief who may consult with the station officer
concerning what action to take.  Station Captains, and occasionally Lieutenants,
are consulted by Assistant Chiefs when the latter prepare the annual evaluation
of Fire Fighters, although the final report is the responsibility of and is signed
by the assigned Assistant Chief.
     The officer on duty usually goes through a routine at the beginning of each
shift to see that maintenance functions are performed regarding the building and
equipment.  They see that work rules are carried out.  The Captain makes out
station work rules.  Station Captains may make minor budgetary decisions, but
are not directly involved in the formal budget process or in ordering major
repairs or approving significant expenditures.  As indicated, officers conduct
training sessions; Fire Fighters rarely conduct such sessions without the presence
of an officer.
     On the other hand, the most recent collective bargaining agreement indicates
there is very little contract administration performed by Captains or Lieutenants.
That agreement provides that grievances initially should be settled by discussion
with "Platoon officers, if possible."  Joint Exhibit 1, Art. 32(3).  Officers are
given some responsibility over equipment in their custody (as are Fire Fighters).
Art. 7(2).  Fire Fighters who are ill are required to notify the Chief, the
Assistant Chief, "or the CO in charge of the shift" no less than one hour before
shift time to draw sick benefits.  Art. 16(8).  The contract does not contain a
disciplinary code or appeal procedure, other than the grievance procedure.  Captains
and Lieutenants have no role in the hiring, firing or promotion process.  They have
no role in the collective bargaining process.
     The Chief testified that officers had a primary role in disciplinary matters
and that the Department operated under the chain-of-command principle.  However,
the Chief also testified that everything is brought to his attention, although
Captains and Lieutenants may handle minor disciplinary matters.  Also, when a
Lieutenant cannot handle a disciplinary matter on his crew, he might go directly
to the Assistant Chief, thus by-passing the Station Captain.  In any event, the
testimony did not establish that "minor disciplinary" matters occurred with such
routine or regularity to qualify under the "principal functions" test of Section

     When responding to a fire, typically the Captain, if on duty, will ride on the
first engine out; otherwise a Lieutenant will do so.  The officer rides up front in
the cab alongside the driver.  Rarely does a regular Fire Fighter, other than the
driver, ride in the cab.  At the scene of the fire, the Captain or Lieutenant is in
charge until an Assistant Chief arrives on the scene.  The senior officer supervises
and directs the fire fighting activity, making decisions concerning breaking doors,
running lines, setting up ladders, and so on.  Invariably an Assistant Chief attends
fires of any significance and is in command once there.  The Chief or Assistant Chief
on duty is frequently advised by radio of the nature and extent of the fire, the
equipment being used, and the like, often times while the engines are on the way or
when first arriving at the scene.  Lieutenants rather commonly will join Fire Fighters
in actual fire fighting activity and Captains do so to a lesser extent.
     The foregoing does not exhaust the various activities within the station house
and at the scene of fires or emergencies.  The Department, contrary to expressions
in the collective bargaining agreement and job descriptions, has no written set of
regulations or written code.  According to the testimony none have ever existed.
Although the job descriptions submitted into evidence describe the general duties
actually performed for each position represented, the testimony clearly showed that
individuals were rarely, if ever, shown a copy of the job description, whether at
the time of hire or any time subsequent.[fn]5  Almost all members of the Department
learned about their job functions by experience or discussion with other Fire Fighters.
It is clear that at the station house and at the scene of the more common type of
fires, Fire Fighters require little direction or supervision.  Most Fire Fighters
have sufficient experience and skill so that they know the routine with respect to
the maintenance and care of the station house and fire fighting equipment, and know
the proper way to approach and attack the typical fire.
     Under the standards contained in the Act, to support a finding that a position
is supervisory requires not only that one of the three criteria exist, but that the
"principal functions of the position are characterized by performing such management
control duties."[fn]6  (Emphasis supplied)  The evidence of supervisory status may take
any of the three forms set out in the statute.  The positions must involve either:
     5 The testimony indicated that rarely, if ever, has a job description been pre-
sented to or reviewed with a newly-hired or promoted employee.  Indeed, the Chief
testified that he accumulated the various job descriptions in his office only a short
time before the hearing and that he could not recall ever having shown or discussed
the Lieutenant's job description with any Lieutenant at any time.  Many of the wit-
nesses testified that they had never seen a job description for their position.
     The job descriptions are all dated "12/69," presumably the date of adoption.
It was testified that there was little change in the actual job functions of the
positions in the intervening years.  There was also testimony that the job descrip-
tions accurately portrayed the general duties for each of the positions represented.
However, there was no testimony indicating that any single or combination of duties
referred to in the exhibits are preformed with sufficient routine or regularity to
qualify under the "principal functions" test of Section 966(1).  Therefore, although
the job description for Captain (Ex. C-l) and Lieutenant (Ex. C-2) contain references
to "supervisory" and "disciplinary" aspects, and the like, of the positions, it is
necessary to examine the descriptions in the context of the testimony given at the
hearing concerning the actual operation of the Fire Department and the actual duties
of the fire fighting force in order to determine whether the "principal functions"
test has been met with respect to the two positions.
     6 Section 966(1), supra, page 1, fn. 1.

         1)  such duties as scheduling, assigning, overseeing and
             reviewing the work of subordinate employees; or
         2)  performing such duties as are distinct and dissimilar
             from those performed by the employees supervised; or
         3)  exercising judgment in adjusting grievances and in
             enforcing a collective bargaining agreement or estab-
             lishing or participating in the establishment of per-
             formance standards for subordinate employees and taking
             corrective measures to implement those standards.
     It is clear from the record that neither Captains nor Lieutenants compose the
basic schedule of operations for the Fire Department.  The Chief testified that
they did not.  Captains may impose work rules and assign fire fighters within the
framework of the schedule, but they do not make out the schedule.  The testimony
regarding "assigning" was not uncontradicted and did not show that assigning of
individual Fire Fighters was a routine activity of Captains and Lieutenants.
Both positions--Captain and Lieutenant--oversee and review the work of Fire
Fighters.  However, the evidence failed to establish that Lieutenants engage in
overseeing and reviewing the work of others as "the principal function" of their
position.  The evidence does not support a conclusion that Lieutenants, particu-
larly as a class, spend a major portion of their time performing such functions.
     Nor can it be found that Lieutenants spend a significant portion of their
time performing duties which are distinct and dissimilar from those performed
by Fire Fighters.  It is equally clear that the role of Lieutenants does not
involve the "exercising of judgment in adjusting grievances, applying other
established personnel policies and procedures and in enforcing a collective
bargaining agreement or establishing or participating in the establishment of
performance standards for subordinate employees and taking corrective measures
to implement those standards," except to a minimal degree.  Nor can it be said
that the three criteria, even if considered in the cumulative, form "the principal
functions" of the Lieutenant position.[fn]7  Rather, Lieutenants as a class appear to
be more in the nature of "group leaders" or "working foremen" rather than super-
visors.  They are more appropriately considered "lead men" who have various added
responsibilities of a limited nature, but who essentially work directly with Fire
Fighters in the performance of fire fighting duties.[fn]8
     However, Captains have additional duties and responsibilities.  They are
"in charge" at the outlying stations; they have considerable report-writing and
log-keeping responsibilities; they do most of the paper work for the station.
They are commonly consulted when Fire Fighters are evaluated.  They are always
in command at fires until an Assistant Chief arrives, and they arrange training
sessions and make assignments thereto.  More typically than Lieutenants, Captains
will have quarters which are distinctively separate from the general quarters of
Fire Fighters.
     7 The "principal functions" tests in Section 966(1) are clearly stated in the
alternative or disjunctive and the hearing examiner so applied them in this report.
     8 If all Assistant Chiefs, Captains and Lieutenants in the force were con-
sidered supervisors, the ratio of supervisors to regular employees would be less
than 1 to 4 (excluding the vacant Captain position).

     However, even if the record clearly established that Captains, as a class,
were undeniably supervisory personnel meeting every standard contained in the
Act, the record fails to establish any basis to now exclude either them or the
Lieutenants from the current bargaining unit which has existed for so many years.
There is more than an adequate community of interest between the officers and
Fire Fighters employed by the Bangor Fire Department.  Although there is a differ-
ential in the weekly wage scale, it is not remarkable; the scale for Mechanic is
also higher than that of Fire Fighter.  All employee benefits (other than salary)
are the same. Officers are promoted from the ranks of Fire Fiqhters.
Shift hours are the same.  They are housed in the same building, live and work
in the same general environment.  All members of the unit have received the same
basic fire fighting training and acquire the same skills.  They perform essentially
the same tasks--training for fire fighting, keeping fire fighting equipment and
mechanisms in proper repair and preparation for fire fighting, and responding to
and fighting fires or responding to other emergencies.  The record shows that the
Assistant Chiefs and the Chief himself perform most of the true managerial and
supervisory functions required in the Department, including scheduling and evalu-
ating personnel, as examples.  Furthermore, as previously indicated, the record
fails to demonstrate that there have been significant problems of administration,
maintenance of discipline, or contract administration caused by the inclusion of
officers in the Fire Fighters unit.  Officers have been included in the over-all
unit for more than thirteen years without unreasonably hampering the administration
of the Department.  Isolated instances of dissatisfaction seem to have been intell-
gently handled.
     The Legislature did not prohibit supervisors from being placed in the same
unit with those supervised where appropriate.[fn]9  The statute does not resolve all
concerns of divided loyalty, nor does it insulate against intra-unit politics or
occasional clashes of interest.
     Based upon the foregoing, the existing unit which includes Captains and
Lieutenants is appropriate, and the petition of the City is denied.  SO ORDERED.
     Nothing contained herein is intended to preclude any subsequent and mutual
agreement of the parties as to the composition of the bargaining unit(s).
Dated at Augusta, Maine, this 1st day of February, 1980.
                                         MAINE LABOR RELATIONS BOARD
                                         Robert I. Goldman
                                         Hearing Examiner

     9 Each case should be considered on its merit.  It would appear that where
there is no established bargaining history, separate units would be more likely
than where there is a lengthy, relatively stable history of an over-all unit.