Local 797, IAFF and Lewiston-Auburn 9-1-1 Committee, No. 83-A-03, reversing in part 
and affirming in part Nos. 83-UC-06 and 83-E-01 

STATE OF MAINE                                      MAINE LABOR RELATIONS BOARD
                                                    CASE NO. 83-A-03
                                                    ISSUED:  December 5, 1983
  and                       )                  REPORT OF APPELLATE REVIEW
                            )                 OF UNIT CLARIFICATION REPORT
LEWISTON-AUBURN 9-1-1       )
COMMITTEE                   )
   This is an appeal of a unit clarification report, filed pursuant to 26 M.R.S.A.
Section 968(4) on November 30, 1982 by Local 797, International Association of Fire-
fighters ("Union").  The hearing examiner determined in the report that the dispatchers,
who alert and direct Auburn firefighting vehicles and personnel to the scene of emer-
gencies from a work site at the Lewiston Central Fire Station, lack a clear and iden-
tifiable community of interest with the uniformed firefighters employed by the City
of Auburn and, therefore, should not be included in the same bargaining unit with
said firefighters.  The Union, on appeal, does not challenge the hearing examiner's
conclusion concerning the dispatchers' lack of community of interest with the uni-
formed firefighters; however, the Union avers that the hearing examiner erred in
finding that the Lewiston-Auburn 9-1-1 Committee is the dispatchers' employer.

     A hearing on this matter was held on October 5, 1983, Chairman Edward H. Keith
presiding, with Employer Representative Thacher E. Turner and Employee Representa-
tive Harold S. Noddin.  The Appellant Union was represented by Peter M. Garcia, Esq.,
and the Lewiston-Auburn 9-1-1 Committee ("Committee") was represented by G. Curtis
Webber, Esq.  The parties were given full opportunity to examine and cross-examine
witnesses, introduce evidence, and make argument, within the strictures applicable
to this appellate proceeding.  Both parties filed post-hearing briefs, which have
been considered by the Maine Labor Relations Board.


     Local 797, International Association of Firefighters, the original petitioner
in the unit clarification proceeding and the Appellant herein is a "party aggrieved",


within the meaning of 26 M.R.S.A. Section 968(4).  The jurisdiction of the Maine
Labor Relations Board ("Board") to hear this appeal and render a decision and
order herein lies in 26 M.R.S.A. Section 968(4).

                              FINDINGS OF FACT
     Upon review of the entire record, the Board adopts, as modified below, the
following findings of fact made by the hearing examiner:

     1.  Prior to the summer of 1979, the dispatchers for the Auburn Fire Depart-
ment were uniformed firefighters who worked at the Central Fire Station in Auburn.
These dispatchers were members of the Auburn firefighters bargaining unit repre-
sented by Local 797.

     2.  In April, 1978, the Cities of Lewiston and Auburn entered into an agree-
ment which created an administrative agency of both cities called the "Lewiston-
Auburn 9-1-1 Committee."  The purpose of the Committee is to establish, operate,
and maintain a 9-1-1 emergency reporting communications system for the Lewiston-
Auburn area.  The Committee is administered by a board of seven members, including
the Police and Fire Chiefs of both Lewiston and Auburn.  The Committee makes an
annual report to and submits its budget to both Cities, each of which pays 50%
of the Committee's expenses.

     3.  In June, 1979 the City of Auburn hired four civilian dispatchers to work
at the 9-1-1 center which is in the Lewiston Central Fire Station.  The City of
Lewiston assigned four of its firefighters to be 9-1-1 dispatchers, and these four
dispatchers have remained in the Lewiston firefighters bargaining unit.  In addi-
tion, four medical dispatchers were hired to work in the 9-1-1 center, and these
dispatchers apparently are not in any bargaining unit.  A 9-1-1 supervisor also was
hired to supervise the operation of the 9-1-1 center.

     4.  Unlike all Auburn firefighters, the new Auburn dispatchers were not hired
through the Auburn civil service system, and they were not required to take the
written and physical tests which applicants for Auburn firefighter positions have
to pass.  The new Auburn dispatchers were trained by the Auburn firefighter dis-
patchers at the Auburn Fire Station for several months, after which time the new
dispatchers moved to the 9-1-1 center at the Lewiston Fire Station while the fire-
fighter dispatchers apparently returned to their firefighting positions.

     5.  All twelve dispatchers take and route calls for the Fire Departments,
Police Departments and ambulance services in Lewiston and Auburn.  One Auburn
dispatcher, one Lewiston dispatcher and one medical dispatcher usually are on
duty at any given time at the 9-1-1 center.  The Auburn dispatcher will pass calls
from Lewiston on to the Lewiston dispatcher if he/she is available and will pass
all medical calls on to the medical dispatcher if he is available.  In the event
that the appropriate dispatcher is unavailable, then the Auburn dispatcher will
handle the call himself.  All Auburn calls similarly are passed on to the Auburn
dispatcher on duty if he/she is available.  The Auburn dispatchers route all
police calls to the dispatchers at the Auburn Police Department, who then handle
the call.  As for fire calls, however, the Auburn dispatchers actually dispatch
the firefighters and the equipment necessary to handle the situation.  This of
course requires that the dispatchers be extremely familiar with Fire Department
standard operating procedure, with the capabilities of the various pieces of Fire
Department equipment and apparatus, and with the streets and the buildings in
Auburn.  The dispatchers' role of dispatching fire calls makes them an important
part of the firefighting team in Auburn.  The Auburn dispatchers also dispatch
Lewiston fire calls when the Lewiston dispatcher is unavailable, which of course
requires that they be familiar with Lewiston fire equipment as well as the geo-
graphy of Lewiston.  The Auburn dispatchers also dispatch medical calls when the
medical dispatcher is not available.

     6.  The Auburn dispatchers are paid by the City of Auburn, and they pick
their paychecks up at the Auburn Fire Station.  The Auburn dispatchers are under
the supervision of and are disciplined by both the 9-1-1 supervisor and the Auburn
Fire Chief.  The Auburn dispatchers are paid approximately $229.00 a week, while
a private in the Auburn Fire Department with comparable seniority currently makes
about $253.00 per week.  Both the Auburn dispatchers and the firefighters average
a 42-hour workweek, although the firefighters work shifts during four consecutive
days and nights followed by four days off, while the dispatchers, due to the high
stress associated with their job, work only two consecutive days or nights before
having two days off.

     7.  In April, 1980, Local 797 and the City of Auburn entered into a collective
bargaining agreement with a term of April 1, 1980 to March 31, 1982.  The recogni-
tion clause of this agreement expressly excludes the 9-1-1 civilian dispatchers from
the firefighters' bargaining unit.  However, in a "sideletter" attached to the

agreement the parties provided that the contract could be reopened "for the pur-
pose of including Dispatchers in the current contract" subject to the condition,
among others, that the dispatchers "must be included in the bargaining unit as
certified by the Maine Labor Relations Board."  Local 797 agreed to the recogni-
tion clause because it was not certain at the time as to what the 9-1-1 dispatchers
working conditions were going to be.  The City was opposed to including the dis-
patchers in the bargaining unit.  A successor agreement was executed by the parties
in April, 1982, and the recognition clause of this agreement likewise expressly
excludes the civilian dispatchers from the bargaining unit.  Although a "side-
letter" also is attached to this agreement, it makes no reference to the possibility
of including the dispatchers in the unit.

     8.  The Auburn Dispatchers are public employees, within the meaning of 26
M.R.S.A. Section 962(6), and are employed by the City of Auburn.

     The Only issue raised by the Union in this appeal concerns the identity of the
Auburn dispatchers' employer.  Although not making a specific finding of fact
relevant to this issue, the hearing examiner, at page 6 of his decision, stated:

     "Second, the two groups have different employers - the dispatchers
     are employed by the Committee while the firefighters are employed
     by Auburn."
The Union has alleged that this conclusion is incorrect, is not supported by sub-
stantial evidence, and should, therefore, be reversed.
     The standard of review applied by this Board to evaluate the correctness of
the hearing examiner's actions is as follows:
     "We will overturn a hearing examiner's rulings and determina-
      tions if they are 'unlawful, unreasonable, or lacking in any
      rational factual basis.'"
City of Bath and Council 74, AFSCME, MLRB No. 81-A-01, at 6 (Dec. 15, 1980).  See
also, Town of Yarmouth and Teamsters Local Union No. 48, MLRB No. 80-A-04, at 5
(June 16, 1980).

     We have applied the foregoing standard of review in this proceeding and, as,
a result, we must overrule the hearing examiner's conclusion that the Lewiston-

Auburn 9-1-1 Committee is the dispatchers' employer.  The only evidence which
tends to substantiate the hearing examiner's conclusion is that the Auburn dis-
patchers are 'supervised, on a day-to-day basis, by the 9-1-1 supervisor.  We
hold that said fact is insufficient to warrant the hearing examiner's conclusion.
Our holding is required by the overwhelming weight of the relevant evidence con-
cerning the identity of the dispatchers' employer and received by the hearing
examiner below.  The dispatchers were hired and trained by the City of Auburn and
they are paid by the City.  The dispatchers collect their pay checks at the Auburn
Fire Department.  Furthermore, the Auburn Fire Chief exercises overall supervision
over the dispatchers and, when the same is warranted, imposes discipline upon said
employees.  Finally, we note that the Lewiston dispatchers, whose relationship with
the 9-1-1 Committee is identical to that of the Auburn dispatchers, are members
of the same bargaining unit as the Lewiston firefighters, negotiate with the City of
Lewiston over the mandatory subjects of bargaining, and are employees of the City
of Lewiston.  The evidence contained in the record militates us not only to reverse
the hearing examiner's conclusion concerning the employer's identity but also to
hold that the City of Auburn is the Auburn dispatchers' employer, within the mean-
ing of 26 M.R.S.A. Section 962(7).

     The hearing examiner's ultimate legal conclusion was that the Auburn dispatchers
lack a clear and identifiable community of interest with the uniformed firefighters
of the City of Auburn and, therefore, the dispatchers should not be included in the
same bargaining unit as the firefighters.  This legal conclusion has not been chal-
lenged in the instant appeal.  Other than his erroneous finding of fact discussed
above, the hearing examiner's ultimate conclusion reflects a proper understanding
and evaluation of the relevant facts in light of the controlling community of in-
terest criteria.  AFSCME, Pine Tree Council No. 74 and City of Brewer, MLRB No.
79-A-01, at 3-4 (Oct. 12, 1979); M.S.A.D. No. 16 Library Employees Ass'n. and
M.S.A.D. No. 16 Board of Directors, MLRB No. 82-A-03, at 4 (Aug. 12, 1982).  Al-
though we have reversed the hearing examiner's factual conclusion concerning the
identity of the dispatchers' employer, our holding does not disturb the validity
of the hearing examiner's ultimate legal conclusion and we expressly affirm the

     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.

Section 968(4), it is ORDERED: 

     1.  The hearing examiner's finding of fact that the Auburn dispatchers
         are employed by the Lewiston-Auburn 9-1-1 Committee, contained in
         the Unit Clarification Report of November 12, 1982, be and hereby
         is reversed.
     2.  That the balance of the Unit Clarification Appeal, filed by Local
          797, International Association of Firefighters, on November 30,
          1982, be and hereby is denied.
     3.  The hearing examiner's decision of November 12, 1982, in all re-
         spects other than that mentioned in paragraph 1 of this Order, be
         and hereby is affirmed.
Dated at Augusta, Maine, this 5th day of December, 1983.
                                       MAINE LABOR RELATIONS BOARD
                                       Edward H. Keith, Chairman
                                       Thacher E. Turner, Employer Representative
                                       Harold S. Noddin, Employee Representative
     The parties are advised of their right, pursuant to Title 26 M.R.S.A. Sections
968(4) and 972, to seek review of this decision by the Superior Court by filing a
complaint in accordance with Rule 80B of the Rules of Civil Procedure within 30
days of the date of this decision.