Auburn Firefighters and City of Auburn, No. 83-UD-15, amended and affirmed
in part by 83-A-07 (MLRB Dec. 5, 1983)
     STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                          [Case No. 83-UD-15]
     797, IAFF              )
       and                  )                 UNIT DETERMINATION REPORT
     CITY OF AUBURN         )
          This is a unit determination proceeding, initiated on January 28, 1983 when
     the Auburn Firefighters Association, Local 797, IAFF (Local 797) petitioned pur-
     suant to 26 M.R.S.A. Section 966 for a bargaining unit determination.  A hearing
     on the petition was held on March 10, 1983 in Augusta, Maine.  Local 797 was repre-
     sented by Peter M. Garcia, Esq. and the City of Auburn (City) by Curtis Webber, Esq.[fn]1
          Local 797 seeks by its petition formation of a bargaining unit composed of
     the 9-1-1 Dispatchers employed by the City.  The City opposes the proposed bargain-
     ing unit on the grounds that 1) the petition is barred by the one-year certifica-
     tion bar set forth in 26 M.R.S.A. Section 967(2), 2) the City is not the employer
     of the Dispatchers, and 3) in any event, the proposed unit would not be appropriate
     for purposes of collective bargaining.
          Gilles M. Lessard, the 9-1-1 Supervisor, was presented as a witness by both
     Local 797 and the City.  Local 797 also presented 9-1-1 Dispatcher Constance Lyons
     as a witness.  The following exhibits were admitted into the record:

          City Exhibit No.   1                  Agreement between the Cities of
                                                Lewiston and Auburn creating the
                                                9-1-1 Committee

          City Exhibit No.   2                  Job Description for the 9-1-1 Dispatchers

          City Exhibit No.   3                  1982 Annual Activity Report, Lewiston
                                                Auburn 9-1-1 System

     1/   Prior to the hearing, the City moved to disqualify Attorney Garcia from
          representing Local 797 in this case on conflict of interest grounds,
          alleging that the firm in which he is a member also represents the City of
          Lewiston in labor relations matters.  The hearing examiner denied the motion,
          finding that while Lewiston might have some indirect interest in the case,
          its interest certainly is not so direct or apparent as to warrant disqualifi-
          cation of counsel.

     Both parties filed post-hearing briefs, which have been considered by the hear-
     ing examiner.
          Local 797 is a public employee organization within the meaning of 26 M.R.S.A.
     Section 967(1).  The City is a public employer as defined in 26 M.R.S.A. Section
     962(7).  The jurisdiction of the hearing examiner to hear this case and rule on
     the petition for unit determination lies in 26 M.R.S.A. Section 966(1).
                                   FINDINGS OF FACT
          Upon review of the entire record, the hearing examiner finds:
          1.  On November 12, 1982 the undersigned hearing examiner issued a Unit Clari-
     fication Report involving Local 797 and the Lewiston-Auburn 9-1-1 Committee.  This
     report resulted from a unit clarification petition and a petition for election filed
     by Local 797 in September, 1982.  The Report denied Local 797's petition to include
     four 9-1-1 Dispatchers in an existing bargaining unit composed of the members of the
     Auburn Fire Department on the grounds that the civilian dispatchers did not share
     a clear and identifiable community of interest with the uniformed firefighters and
     that clarification of the bargaining unit would be contrary to the Labor Relations
     Board's unit clarification standards in any event.  The hearing examiner also de-
     cided not to order formation of a unit of the four City of Auburn 9-1-1 Dispatchers
     because, as the record contained no evidence with regard to the four medical dis-
     patchers employed at the 9-1-1 center, he was unable "to determine whether a bar-
     gaining unit of just the Auburn dispatchers or a unit of all the unrepresented dis-
     patchers is appropriate."  Local 797's petition for an election for a unit of Auburn
     9-1-1 Dispatchers accordingly was dismissed.  All the findings and conclusions in
     this Unit Clarification Report are hereby incorporated herein by reference.
          2.  In April 1978 the Cities of Lewiston and Auburn entered into an agreement
     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 main-
     tain a 9-1-1 emergency reporting communications system for the Lewiston-Auburn area.
     The Committee consists of seven members, including the Police and Fire Chiefs of
     both Lewiston and Auburn.  The Conniittee sets the rules and regulations for operation

     of the 9-1-1 center, which is located in Lewiston's central fire station.  Vari-
     ous subcommittees of the Committee are responsible for such matters as purchasing
     new equipment for the center.  The Committee makes an annual report to and sub-
     mits its budget to both Cities, each of which pays 50% of the Committee's expenses.
          3.  The 9-1-1 Supervisor, a former City of Lewiston firefighter, is respon-
     sible for the day-to-day operation of the 9-1-1 center.  He performs such duties
     as supervising and evaluating the dispatchers, training new dispatchers, and
     preparing the budget and the annual report.  About one-third of his salary is paid
     by the 9-1-1 Committee and the remaining two-thirds is paid by the City of Lewis-
     ton.  The 9-1-1 Supervisor is the only employee paid by the 9-1-1 Committee.
          4.  Twelve dispatchers are employed at the 9-1-1 center.  Four of the dispat-
     chers are employed and paid by the City of Lewiston and, being Lewiston firefighters,
     are members of Lewiston's firefighters' bargaining unit.  Their wages and fringe
     benefits are established through collective bargaining and are different than the
     wages and benefits of the other dispatchers.  Another four dispatchers are employed
     by Tri-County Emergency Medical Services, a private company which sets and pays the
     wages and benefits of its dispatchers.  The remaining four dispatchers (the "Auburn
     Dispatchers") are employed by the City of Auburn.  Their wages and benefits, which
     are different than those received by the Lewiston or the medical dispatchers, are
     set and paid by Auburn.  Neither the 9-1-1 Committee nor the 9-1-1 Supervisor
     have any say in the wages and benefits received by the 9-1-1 dispatchers.  Three
     dispatchers - a Lewiston dispatcher, a medical dispatcher, and an Auburn dispatcher -
     are on duty at any given time.  As set forth in Finding of Fact No. 5 in the Novem-
     ber 12, 1982 Unit Clarification Report, each dispatcher usually handles only those
     calls involving his/her employer, i.e., Lewiston dispatchers handle Lewiston police
     and fire calls, the medical dispatchers handle the medical calls, and the Auburn
     dispatchers handle the Auburn calls.
          5.  The four Auburn Dispatchers were hired by the Auburn Fire Chief in 1979.
     The Dispatchers are paid with City of Auburn paychecks which they pick up at the
     central fire station in Auburn.  The 9-1-1 Supervisor can recommend discipline for
     the Auburn Dispatchers but final disciplinary authority, including the authority
     to suspend a Dispatcher or withhold pay resides in the Auburn Fire Chief.  (The
     authority to discipline the Lewiston dispatchers and the medical dispatchers also
     rests with their respective employers).  Insurance coverage and all other fringe

     benefits for the Auburn Dispatchers are provided by the City of Auburn.  The
     Auburn Dispatchers personnel records are kept at the central fire station in
          At issue is the question whether a bargaining unit of the Auburn Dispatchers
     is an appropriate unit for purposes of collective bargaining.  The hearing examiner
     determines that such a unit is appropriate and will order formation of a bargain-
     ing unit composed of all 9-1-1 Dispatchers employed by the City of Auburn.  A
     representation election for this unit will also be ordered.
          The City's first objection to the proposed unit is that the unit petition is
     barred by the "certification bar" rule set forth in 26 M.R.S.A. Section 967(2):
              "No question concerning representation may be raised within one
          year of certification or attempted certification."
     The City points out that in September, 1982 Local 797 filed a unit clarification
     petition and an election petition, and urges that these petitions constituted
     an "attempted certification" which bars the representation petitions at issue in
     this case.  The unit petition was denied and the election petition dismissed
     without an election in the November 12, 1982 Unit Clarification Report.
          The City's argument is incorrect because the language "certification or
     attempted certification" in Section 967(2) refers to Labor Relations Board certi-
     fication of the results of a representation election, and no representation elec-
     tion was ever held as a result of the petitions filed by Local 797 in September,
     1982.  Under the analogous provision in the National Labor Relations Act, 29 U.S.
     C.A. Section 159(c)(3), it is clear that a representation election, not a bargain-
     ing unit proceeding, is the event which triggers the one-year certification bar.
     See, e.g., Catholic Community Services, 254 NLRB 763 n.2 (1981); B.F. Goodrich
     Chemical Co., 84 NLRB 429, 430 (1949).  Multiple representation petitions for the
     same employees may be filed during a year's time, provided that no election is held
     during the year.  See, e.g., Catholic Community Services, 254 NLRB at 763 n.2;
     Wagner Electric Corp., 53 NLRB 543, 544 (1943).  Moreover, if the City's position
     was correct a union or an employer could bar an election forever simply by filing
     a unit clarification petition every year, a result which the Legislature surely
     did not intend when it enacted Section 967(2).  Since a representation election

     has never been conducted for the Auburn 9-1-1 Dispatchers, the Section 967(2) cer-
     tification bar is not applicable in this case and the hearing examiner may consider
     Local 797's current representation petitions.
          The City's next contention is that Local 797's petitions are defective because
     they name the wrong employer.  The City urges that the hearing examiner found in
     the November 1982 Unit Clarification Report that the 9-1-1 Committee and not the
     City of Auburn was the employer of the Auburn 9-1-1 Dispatchers.  It is true that
     the hearing examiner, when comparing the community of interest between the Auburn
     Dispatchers and the Auburn firefighters, stated:
          "Second, the two groups have different employers - the dispatchers are
           employed by the Committee while the firefighters are employed by Auburn."
          In light of the clear and convincing evidence in the present case that the City
     of Auburn employs the Auburn 9-1-1 Dispatchers, however, the hearing examiner must
     conclude that he erred in the earlier report by finding that the 9-1-1 Committee
     employs the Dispatchers.  The evidence shows that the City hired the Dispatchers,
     sets and pays all of their wages and fringe benefits, and is the custodian of their
     personnel records.  In addition, the Auburn Fire Chief has the final authority in
     disciplinary matters involving the Auburn Dispatchers.  In contrast, the 9-1-1
     Committee did not hire the Dispatchers and has nothing to do with the wages and fringe
     benefits they receive.  Given this uncontradicted evidence, most of which was testi-
     fied to by the 9-1-1 Supervisor, it is clear that while the 9-1-1 Committee is in
     full charge of operating the 9-1-1 center, it is not the employer of the Auburn
     9-1-1 Dispatchers.  The hearing examiner concludes that the City of Auburn is the
     employer of the Auburn 9-1-1 Dispatchers and that Local 797 therefore named the
     correct employer in its petitions.
          Finally, the City argues that a bargaining unit of the Auburn 9-1-1 Dispatchers
     would not be appropriate for purposes of collective bargaining, urging that a unit
     of the Auburn 9-1-1 Dispatchers and the Lewiston 9-1-1 Dispatchers would be a more
     appropriate unit.[fn]2  The problem with this argument is that the Lewiston Dispatchers
     are Lewiston firefighters who have been members of the Lewiston firefighters bar-
     gaining unit for years, and no case has been made as to why they should be removed
     2/   The medical 9-1-1 dispatchers are employed by a private company and therefore
          may well not be subject to the Labor Relations Board's jurisdiction.  See
          26 M.R.S.A. Section 962(7).

     from their present unit.  The hearing examiner therefore concludes that it would not
     be appropriate to remove the Lewiston Dispatchers from their bargaining unit and
     place them in a unit with the Auburn Dispatchers.  On the other hand, the hearing
     examiner finds that a bargaining unit of the Auburn 9-1-1 Dispatchers is appro-
     priate for purposes of bargaining; the Auburn Dispatchers are public employees who
     share a clear and identifiable community of interest.
          On the basis of the foregoing findings of fact and discussion, and by virtue of
     and pursuant to the powers granted by 26 M.R.S.A. Section 966, it is ORDERED:
          1.  The bargaining unit is composed of all 9-1-1 Dispatchers
              employed by the City of Auburn.
          2.  The Executive Director or his designee should conduct a
              representation election for the bargaining unit as soon as

     Dated at Augusta, Maine, this 19th day of April, 1983.

                                               MAINE LABOR RELATIONS BOARD

                                               Wayne W. Whitney, Jr.
                                               Hearing Examiner 

          The parties are advised of their right pursuant to 26 M.R.S.A. Section 968(4)
     to appeal this report to the full Labor Relations Board by filing a notice of appeal
     with the Board within 15 days of receipt of the report.