City of Augusta and Council 74 AFSCME, No. 81-UD-20, affirmed in part and modified by 81-A-03. Board decision affirmed by CV-81-477. STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case Nos. 81-UD-20 & 81-E-01] [Issued: June 2, 1981] _______________________ ) CITY OF AUGUSTA ) ) and ) REPORT ON PETITION FOR ELECTION ) AND REAFFIRMATION OF BARGAINING UNIT COUNCIL #74, AMERICAN ) FEDERATION OF STATE, ) COUNTY AND MUNICIPAL ) EMPLOYEES ) _______________________) The City of Augusta filed a Petition for Election on November 18, 1980. In the petition the City also requested re-examination of the bargaining unit, or "Reaffirmation of Bargaining Unit," as the petition put it. A hearing in the matter was held on April 14, 1981 at the Bureau of Labor Conference Room, Seventh Floor, State Office Building, Augusta, Maine, pursuant to the provisions of Chapter 9-A, Title 26 M.R.S.A., Section 961, at seq. ("the Act"). Present at the hearing for the City of Augusta ("City") were: Charles E. Moreshead, Esq. Attorney for City of Augusta Paul G. Poulin City Manager, City of Augusta John G. Edgerly Treasurer, City of Augusta Madeline Cyr City Clerk, City of Augusta Council #74, American Federation of State, County and Municipal Employees ("Council #74") did not participate in the formal aspects of the hearing.[fn]1 Also present was Robert I. Goldman in his capacity of Hearing Examiner, as designated by the Executive Director of the Maine Labor Relations Board. The City filed its petition to test the validity of a bargaining unit of "Augusta City Hall Employees" established in 1970, and whether Council #74 con- tinues to represent a majority of employees in the unit. By letter dated Decem- ber 9, 1980 Council #74 requested dismissal of the petition contending that no provision exists under the Act for an employer petition for an election, except pursuant to an original claim for recognition. To authorize such petitions would encourage actions violative of Section 964(1)(C)[fn]2 of the Act. The undersigned on December 11, 1980 forwarded a letter suggesting legal precedent for an employer petition at times other than when there is a claim for original recognition and requesting further information from the parties. Each of the parties responded. The City responded with an affidavit by the City Manager stating that there had never been a contract between the parties since the formation of the unit in 1970 and that in 1981 only one person remained of the 13 in the unit back in 1970. Council #74 responded with an offer to proceed, by way of Unit Clarification proceed- __________ 1. John J. Ezhaya, Field Representative of Council #74, was present at the beginning of the hearing but did not participate and left the hearing room as a gesture to protect the legal position of Council #74, as stated by Mr. Exhaya. An oral motion by Mr. Ezhaya for a continuance to further study the legal issue in the matter was denied. The hearing proceeded with testimony from the City participants. 2. Section 964 lists among public employer prohibitions, "C. Dominating or interfering with the formation, existence or administration of any employee organization; . . ." [-1-] __________________________________________________________________________________ ings, to an election provided the City did not raise the 120 day notice provision of the Act with respect to money issues.[fn]3 An informal meeting failed to resolve the issues between the parties and a formal hearing was scheduled and held on April 14, 1981. The various items of correspondence and documents received from the parties preliminary to the formal hearing are hereby incorporated in and made part of the record.[fn]4 JURISDICTION Council #74 is a labor organization engaged in the business of organizing and representing public employees for the purposes of collective bargaining and other rights granted by the Act. The City is a public employer as defined in Section 962(7) of the Act. The jurisdiction of the Maine Labor Relations Board ("Board") to hear this matter and make a determination lies in Sections 966 and 967. FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. As the result of an election held on May 27, 1970 among employees of a unit designated as "Augusta City Hall Employees" Council #74 was certified as the bargaining representative for the employees in the unit. The bargaining unit at that time consisted of the following clerical and secretarial positions in the respective departments listed: Clerk II Assessors Clerk-Typist I Assessors Bookkeeper City Auditor Clerk-Machine Op. I City Auditor Clerk-Typist I City Clerk Clerk II) 3 positions Treasurer-Tax Collector Clerk I ) Treasurer-Tax Collector Nurse - 2 positions Health & Welfare Clerk II Health & Welfare __________ 3. Section 965(1)(E) provides that when monetary items are included in bargaining requests the bargaining agent must serve notice on the employer at least 120 days prior to the conclusion of the current fiscal operating budget. 4. Included are: Employer's petition filed November 18, 1980. Letter dated December 9, 1980 from Mr. Ezhaya to Parker Denaco, Executive Director of the Board. Request for bargaining letter dated August 29, 1980 from Charles W. Sherburne, Executive Director, Council #74, to Paul Poulin, City Manager. Response to Mr. Sherburn from Mr. Moreshead, Attorney for the City, dated September 15, 1980. Letter from Mr. Ezhaya to Mr. Poulin requesting bargaining, dated November 10, 1980. Letter from Mr. Goldman to Mr. Moreshead and Mr. Ezhaya and attachment dated December 11, 1980. Affidavit of Mr. Poulin, received December 29, 1980. Letter from Mr. Ezhaya to Mr. Denaco dated December 29, 1980. Listing of positions provided by the City and accompanying letter from Mr. Poulin in response to letter of Mr. Goldman dated December 29, 1980. Letter of Mr. Goldman dated January 8, 1981 requesting certain personnel information and exchange of letters between Mr. Moreshead and Mr. Goldman dated January 19, 1981 and January 22, 1981, respectively. March 18, 1981 and March 25, 1981 notices of hearing from Mr. Goldman to the parties. -2- __________________________________________________________________________________ Dispatcher/Clerk Public Works Clerk-Typist I Police The unit consisted of 13 employees. Certain secretarial positions, such as the Secretary to the City Manager and Secretary to the head of Public Works were excluded. The basis for the exclusion is unspecified, although presumably it was based on "confidentiality."[fn]5 Department heads and deputy department heads were also excluded. 2. By determination issued on April 29, 1970 by the Commissioner of the Department of Labor and Industry[fn]6 school system clericals were excluded from the unit based upon a finding that they were not employed by the City but rather by the School Board. That determination is incorporated herein by reference. 3. The bargaining unit of Augusta City Hall Employees as established in 1970 included all secretarial and clerical positions in the employ of the City of Augusta other than those who were excluded by agreement of the parties, being those re- ferred to in Paragraph 1 of the Findings of Fact, supra, or excluded by formal determ- ination. Althouth one other position, a Clerk-Steno position under "Planning & Building Inspector," was listed in the General Government Salary Schedule for the year 1970, the hearing examiner concludes that the position was not filled and there was no expec- tation of its being filled at the time of the proceedings and election in 1970. 4. All of the positions in the unit in 1970 were physically located or operated out of offices located in City Hall, except for the Public Works Dispatcher/Clerk which was located at the Public Works garage in another part of town. 5. There is no evidence that after Council #74 was certified in 1970 any negotiations over the terms and conditions of employment ever took place. Further, no collective bargaining agreement was ever consummated covering the employ- ees in this unit. No complaints or charges of any kind were ever filed with the Board or its predecessor agency suggesting a failure of either party to respond to a request for negotiations, or to otherwise meet the responsibilities imposed on the parties by the collective bargaining laws. Nor, prior to the filing of the instant petition, has any correspondence been received by this agency from any source whatever pertaining to this unit. 6. As of the date of the hearing on April 14, 1981, the following clerical, secretarial and nursing positions existed in the departments which contributed to the formation of the 1970 unit: Clerk Assessors Assistant to Assessor Assessors Clerk/Machine Operator City Auditor Bookkeeper City Auditor Clerk-Typist City Clerk Clerk-Cashier (2 positions) Treasurer-Tax Collector Caseworker/Clerk Health & Welfare Registered Nurse Health & Welfare Licensed Practical Nurse Health & Welfare Clerk Public Works __________ 5. See Section 962(6)(C) of the Act. 6. At that time representation matters were within the jurisdiction of the Department of Labor and Industry. In 1971 those functions were transferred to the Executive Director of the Board. Chapter 609, Acts of 1971. -3- __________________________________________________________________________________ Under Section 966(1) of the Act the Registered Nurse in Health & Welfare cannot be included in a unit with non-professionals unless the incumbent opts for inclusion. At the time of the election in 1970 a request was made for exclusion of the two nurses who were in the department at that time. There is no indication whether they were R.N.'s or L.P.N.'s. The claim was disallowed because it came too late in the proceeding. The City claims that the Public Works clerical is not the same position included in the 1970 unit which was a Dispatcher/Clerk position, and in any event the position appropriately should be assigned to the Public Works unit. It is noted that the Public Works unit specifically excludes "clerical" positions. See additional finding infra, Paragraph 10, in the Findings of Fact. 7. Changes from the composition of 1970 unit among the positions listed in Paragraph 7 are: In 1970 there were two Clerks in the Auditors office, whereas now there is one Clerk and the Assistant to the Assessor. Formerly there were three clericals in the Treasurer/Tax Collector office and now there are two, one position having been elevated to that of Deputy. As noted, one of the Nurse positions cannot be in- cluded except at the incumbent's option. The Dispatcher/Clerk position in Public Works no longer exists. There is a new clerical position in that department which the City contends should be included in the Public Works unit not a City Hall unit. In 197O there was a Secretary to the Director of Public Works, which was an excluded position. That same position exists today. One clerical in the Police Department was included in the 1970 unit. Today there are no clerical positions. There are currently several Dispatchers in the Police Department. The Dispatchers have their own separate bargaining unit. The former position of Secretary to the Police Chief - an excluded position - is now Secretary to the Director of Public Safety. Public Safety did not exist as a separate department in 1970. Under the standards applied in 1970 this Secretary position would be excluded. 8. Other changes in the organizational structure of City Hall and in City government which affect the attempt to formulate the scope and composition of a unit described as "Augusta City Hall Employees" are: There are now Meter Maids[fn]7 who are attached to the Police Department and are not now in any bargaining unit. The Meter Maids wear uniforms. There are now two Secretaries in the City Manager's office whereas in 1970 there was one and that position was excluded, presumably as a confidential employee pursuant to Section 962(6)(C) of the Act. The City claims that both are subject to the exclusion. There are several departments or offices which did not exist in 1970 and which have clerical or secretarial positions attached to them. These include Engineering which employs a Draftswoman/Clerk; Community Development which has a Secretary and __________ 7. The record does not indicate whether this is the formal title or an informal title. -4- __________________________________________________________________________________ a Housing Rehab Counsellor; and Recreation which has a Clerk-Typist and Surveyor position. In any unit consideration at least one of these positions - the Surveyor - would have to be reviewed concerning possible exclusion. The Community Development office is directly under the City Manager's office and it is headed by an Assistant to the City Manager. The City contends the Assistant is a depart- ment head and excludable from a clerical and secretarial unit under the 1970 standards. There is a Central Computer office under a department head. This office did not exist in 1970. Presently this office utilizes Audit personnel but it is ex- pected that some of the Auditors staff will be transferred to Computer Control at some future date. 9. The Augusta Civic Center is a new facility since the 1970 proceedings. The City claims this facility is wholly independent of City Hall and is self- sustaining. There are 9 full-time employees at the Civic Center, two of whom are clericals. Although not paid with general municipal funds, the employees at the Center are paid with City checks and enjoy a number of benefits enjoyed by other City personnel. Thus, a question arises whether any bargaining unit of general scope should include employees at the Civic Center. 10. The operating employees of the Police and Fire Departments were organ- ized for collective bargaining purposes and represented by designated bargain- ing representatives prior to 1970. The Public Works Department was organized in 1971. Currently the following City bargaining units exist (excepting the one which is the subject of this proceeding): Uniformed Members of the Fire Department Patrolpersons of the Police Department Dispatchers of the Police Department Sergeants and Lieutenants, Police Department Public Works Department employees, excluding supervisory, clerical and seasonal employees. There are School Department units, including a teaching unit and a clerical unit. The School Board is the public employer of School Department personnel, not the City. DISCUSSION The conclusion is inescapable that there have been basic changes in City government which affect the bargaining unit described as "Augusta City Hall Employees" since the unit was created in 1970. There are departments attached to City Hall which did not exist in 1970 and these departments have clerical or secre- tarial positions which would logically fall within the scope of the 1970 unit. There are positions in pre-existing departments which are new, such as Caseworker/ Clerk in Health & Welfare, and these positions would logically fall within the scope of such a unit. There are Deputy Director positions which did not exist in 1970 and there is a question whether some of these positions should be examined in any unit structuring, including the consideration of the community of interest standard of the Act. Titles and positions associated with the old unit have changed. Some positions in the old unit have been phased out or altered, e.g., the Dispatcher/ Clerk position in Public Works. There is a question whether certain positions are professional in nature and ought to be provided with the option of inclusion as the -5- __________________________________________________________________________________ Act provides. There is a fundamental question whether certain secretarial positions excluded in 1970, such as secretaries to certain department heads, are properly excluded. In that regard the question of confidentiality related to labor relations should be examined with some care, since employees should not be denied benefits and rights under the Act arbitrarily. Should a City-wide clerical (or administra- tive) unit encompass the personnel at the Civic Center? What about the Meter Maids? And, the secretary and clerical located at Public Works? The foregoing merely dramatizes the obvious. The unit established in 1970 for collective bargaining purposes under circumstances then pertaining is hardly valid given the current municipal organizational and structural realities. The old unit is no longer viable. Furthermore a unit appropriate for bargaining under the Act should not be formulated without the knowledgeable insights and contribution of parties on either side of the bargaining equation. To conclude that the 1970 unit is no longer viable or current is one thing; to establish an acceptable, intelli- gently formulated unit appropriate under the Act is another. There is nothing in the Act that prohibits a party from raising the bona fides of a bargaining unit in these circumstances. This is particularly true given the fact that the unit has lain dormant for more than 10 years. Where there is an on- going collective bargaining relationship, there is the continuing opportunity to review the unit itself. This review goes on all the time and is most often accom- plished by the parties without the intercession of a labor board or other outside agent. The give and take of negotiations is the leavening agent of collective bargaining, even as it pertains to unit questions. It cannot be presumed that a unit will remain interminably dormant and subject to instant resuscitation where there has been a prolonged neglect of the very process for which it was established. That is unrealistic and not in accord with the law.[fn]8 The hearing examiner finds, therefore, that the bargaining unit as it existed in 1970 is no longer viable or appropriate for collective bargaining under the Act. The public employer has the right to raise the issue and have it determined.[fn]9 __________ 8. Council #74's objections to the proceedings are predicated upon an assumption that its original certification can be challenged only via the decertification procedures specified in Section 967(2). This does not appear to be the case. In the private sector where there is good faith doubt of majority status, the National Labor Relations Board allows challenge by an employer. See NLRB v. Burns Int'l. Security Services 406 U.S. 272, 80 LRRM 2225 (1972) and U.S. Gyp- sum Company and United Steel Workers of America, AFL-CIO, 157 NLRB 652, 656 (1966). Furthermore the NLRB has acknowledged that even during the certifi- cation year "unusual circumstances" may lead to challenge of majority status. "Unusual circumstances" include dissolution of the certified union, Public Serv. Elec. & Gas Co., 59 NLRB 325, 15 LRRM 152 (1944), and where the certi- fied union has disclaimed interest in the unit, WTUP, Inc., 114 NLRB 1236, 37 LRRM 1143 (1955). It would appear that dormancy of a unit for 10 years, whether intentional or unintentional, would constitute an effective disclaimer or an "unusual circumstance." This Board has also indicated that it would follow the U.S. Gypsum rule. See, e.g., Bangor and Local 1599, International Assn. of Firefighters, MLRB Report of Appellate Review of Unit Determination (July 18, 1980) fn 3 [80-A-03]. Since the representation question is properly raised it follows that the unit question is open for review as well. 9. Council #74 has suggested that the petition be treated as one for Unit Clari- fication. But Unit Clarification is premised upon the lack of a question concerning representation and there is clearly a representation question in the instant case. See Section 966(3) of the Act. As to the form employed, the Employer's Petition for Election is adequate to raise the issues in the matter. -6- __________________________________________________________________________________ Having found the old unit no longer appropriate, it seems to be the better judgment to forego defining what might be an appropriate unit at this time. Such determination is better made in the context of an organizational and representation attempt where the benefit of differing views and sources of information might come into play. Based upon the foregoing the hearing examiner finds that a unit described as "Augusta City Hall Employees" and composed of the positions listed in Paragraph 1 of the Findings of Fact is no longer appropriate for the purposes of collective bargaining under the Act. SO ORDERED. This determination should not be viewed as a certification or attempted cer- tification and therefore does not constitute a time bar to a representation pe- tition involving an appropriate unit consisting of positions discussed herein. Since the former unit has been found no longer viable and no other unit has been formulated, it is unnecessary to act on the employer's request for an election. Dated at Augusta, Maine, this 2nd day of June, 1981. MAINE LABOR RELATIONS BOARD /s/_____________________________________ Robert I. Goldman Hearing Examiner -7- __________________________________________________________________________________