City of Saco and Teamsters, No. 83-A-08, affirming 83-UC-12 STATE OF MAINE MAINE LABOR RELATIONS BOARD CASE NO. 83-A-08 Issued: July 18, 1983 ________________________ ) CITY OF SACO ) ) and ) REPORT OF APPELLATE REVIEW ) OF UNIT CLARIFICATION REPORT TEAMSTERS LOCAL UNION ) NO.48 ) ________________________) This is an appeal of a unit clarification report, filed pursuant to 26 M.R.S.A. Section 968(4) on June 8, 1983 by the City of Saco ("City"). The hearing examiner determined in the report that the Secretary in the Office of Community Development and the Secretary in the Economic Development Department both are "public employees" who should be included in the existing Clerical and Maintenance Bargaining Unit in the City of Saco. The City contends on appeal that the hearing examiner erred by finding that the two Secretaries are not "temporary employees" who are not entitled to be included in a bargaining unit. The parties waived hearing of the appeal and submitted their arguments to the Labor Relations Board in memoranda. The City was represented by labor consultant Robert D. Curley and Teamsters Local 48 ("Local 48") was represented by Secretary/ Treasurer Walter J. Stilphen. JURISDICTION Local 48 filed the unit clarification petition in this case as the certified bargaining agent of the City of Saco Clerical and Maintenance Bargaining Unit. The City is a public employer as defined in 26 M.R.S.A. Section 962(7). The jurisdic- tion of the Maine Labor Relations Board to review the unit clarification proceeding and render a decision and order lies in 26 M.R.S.A. Section 968(4). FINDINGS OF FACT Upon review of the entire record, the Labor Relations Board adopts as modified the hearing examiner's findings of fact: [-1-] __________________________________________________________________________________ 1. The parties stipulated that, but for the allegation that they are not "public employees" under 26 M.R.S.A. Section 962(6), the Secretary in the Office of Community Development and the Secretary of the Economic Development Department share a clear and identifiable community of interest with the employees presently included in the Clerical and Maintenance Bargaining Unit. The parties also stipu- lated that both secretarial positions were created subsequent to negotiations for the current collective bargaining agreement in effect between the parties for the Clerical and Maintenance Bargaining Unit. 2. The Office of Community Development is not a separate department of the City but rather is part of the City Administrator's office. The Office of Com- munity Development presently is operating under a grant received in 1981. Funding for the third and final year of the program is due to expire in July, 1984 unless a subsequent grant is received. There is no assurance that future funding will be received. Staff for the Office of Community Development, including the Secretary, are hired knowing that their employment is for the grant period and that their positions will be eliminated if subsequent funding is not received. 3. The City entered into an agreement to hire an Economic Development Direc- tor for a period of one year on August 20, 1982. Paragraph 1 of the agreement states in pertinent part: "For purposes of State and Federal income tax and Social Secur- ity, the Director shall be considered and classified as an employee. For all other purposes, the Director shall be considered and classified as an independent contrac- tor." Paragraph 2 of the agreement states in pertinent part: "The City shall pro- vide the Director with an office and a secretary to assist him in carrying out his duties." DECISION The hearing examiner correctly ruled that all the prerequisites for the grant- ing of a unit clarification petition have been satisfied in this case, and the City does not challenge any of these rulings. The only issue presented is whether the hearing examiner erred by finding that the two Secretaries are not "temporary em- ployees" within the meaning of 26 M.R.S.A. Section 962(6)(G).[fn]1 We determine that __________ 1/ Section 962(6)(G) defines "public employee" to mean any employee of a public employer except any person "[w]ho is a temporary, seasonal or on-call employee." Section 966(1) states "that anyone excepted from the definition of public em- ployee under Section 962 may not be included in a bargaining unit." -2- __________________________________________________________________________________ no error was committed by the hearing examiner and therefore affirm his order that the two Secretaries be included in the Clerical and Maintenance Bargaining Unit. The test for determining whether an employee is a Section 962(6)(G) temporary employee is as follows: "The point of the 'temporary, seasonal, or on-call ' exclusion is to exclude those employees who, because they work irregularly or spora- tically, do not have a community of interest with the permanent, full- time employees in the unit. Thus, as the hearing examiner held, tradi- tional community of interest considerations control the determination whether an employee is a temporary, seasonal, or on-call employee." Town of Berwick and Teamsters Local 48, MLRB No. 80-A-05 at 3 (July 24, 1980). In the present case the parties have stipulated, and rightfully so, that the two Secretaries share a clear and identifiable community of interest with the members of the bargaining unit; the secretaries perform the same duties that other members of the unit perform. The fact that the Community Development Secretary is paid from a grant which may not be renewed does not mean the employee cannot share a community of interest with other public employees. We have held that workers such as CETA employees and Title I Teacher Aides whose salaries are paid from grant monies are "public employees" entitled to be included in bargaining units, and we see no basis for making a contrary ruling here. See, e.g., United Paper- workers International Union and M.S.A.D. No. 33, Report of Appellate Review at 2 (Dec. 14, 1976); Harmony Teachers Association and Harmony School Department, Unit Clarification Report at 3 (Sept. 11, 1979). As the hearing examiner noted, the Community Development Secretary's position will be in existence for at least 3 years, so it is not possible to say that the employee holding the position works on an irregular or sporatic basis. As for the Economic Development Secretary, the hearing examiner correctly held that the fact that this employee may work for an independent contractor does not mean that the employee cannot be a "public employee." The agreement between the City and the Economic Development Director states that, "The City shall provide the Director with an office and a secretary to assist him in carrying out his duties." The Secretary therefore is employed not by the Director but by the City, and consequently is a public employee who is entitled to be included in a bargaining unit. As the position will last for at least one year, it is not the type of position subject to the Section 962(6)(G) exclusion. -3- __________________________________________________________________________________ Finally, the City on appeal has attempted to introduce a copy of the City Charter, arguing that since the Charter does not indicate that the Communi- ty Development and Economic Development offices are official City departments, the two offices and their employees must be seen as temporary entities. Since our authority under Section 968(4) is limited to reviewing matters presented to the hearing examiner, we will not consider on appeal any document or argument not presented to the hearing examiner. See, e.g., Teamsters Local 48 and City of Portland, Report of Appellate Review at 5 (Feb. 20, 1979). We therefore reject the City's argument because it was not raised in a timely fashion. We also note in any event that the argument is irrelevant, for the fact that the employer considers the employee to be a temporary employee is not dispositive of the issue. See, e.g., AFSCME, Council 74 and City of Bangor, MLRB No. 79-A-02 at 3-4 (Oct. 17, 1979). We conclude that the hearing examiner correctly found that the Secretary in the Office of Community Development and the Secretary in the Economic Development Department are not "temporary employees." Since the two Secretaries share a clear and identifiable community of interest with the members of the bargaining unit, the hearing examiner properly ordered that the two positions be included in the unit. The City's appeal must be denied. ORDER Based on the foregoing findings of fact and discussion 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 City of Saco's appeal of the unit clarification report in this matter is denied. 2. The determinations of the hearing examiner are affirmed. The description of the existing Clerical and Maintenance Bargaining Unit in the City of Saco is modified to include, in addition to all other positions presently in the unit, the positions of Secretary in the Office of Community Development and Secretary in the Economic Development Department. -4- __________________________________________________________________________________ Dated at Augusta, Maine, this 15th day of July, 1983. MAINE LABOR RELATIONS BOARD /s/____________________________________________ Donald W. Webber, Alternate Chairman /s/____________________________________________ Don R. Ziegenbein, Employer Representative /s/____________________________________________ 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 15 days after receipt of this decision. -5- __________________________________________________________________________________