Augusta Uniformed Firefighters Assoc., Local 1650, IAFF and City of Augusta, Board Decision No. 85-A-02, reversing Hearing Examiner's Decision in 85-UC-02. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-A-02 Issued: February 21, 1985 _________________________________ ) AUGUSTA UNIFORMED FIREFIGHTERS ) ASSOCIATION, LOCAL 1650, INTER- ) NATIONAL ASSOCIATION OF FIRE- ) FIGHTERS, AFL-CIO ) ) REPORT OF APPELLATE REVIEW OF and ) UNIT CLARIFICATION REPORT ) CITY OF AUGUSTA ) _________________________________) This is an appeal of a Unit Clarification Report issued on December 12, 1984 by a hearing examiner for the Maine Labor Relations Board ("Board"). The report of the hearing examiner issued after hearing on the petition of the Augusta Uniformed Firefighters Association, Local 1650, International Association of Firefighters, AFL-CIO ("Union") to clarify whether the position of Platoon Chief should be in the bargaining unit with regular Firefighters. The peti- tion was filed pursuant to Section 966(3) of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. ("Act"). The hearing examiner, after overcoming the City's procedural or jurisdictional objections, found that the Platoon Chiefs shared a sufficient community of interest with the Firefighters to include them in the same bargaining unit. The City timely appealed that deter- mination and a hearing on the appeal was held on January 24, 1985, Alternate Chair William M. Houston presiding, with Employer Representative Linda D. McGill, Esq., and Employee Representative Russell A. Webb. The City was represented by Charles E. Moreshead, Esq., and the Union by Martin S. Hayden, Esq. Testimony of witnesses was permitted at the appeal hearing solely for the purpose of clarifying evidence received before the hearing examiner. The parties waived post-hearing briefs and made oral argument at the conclusion of the proceedings. The jurisdiction of the Board to hear and decide the matter and render a decision and order lies in 26 M.R.S.A. 968(4). [-1-] ______________________________________________________________________ Appearing as witnesses at the appellate hearing were: Norman Arbour Platoon Chief Richard D. Griffin Director of Public Safety FINDINGS OF FACT Upon review of the entire record, the Board makes the following findings of fact: 1. The Petitioner, Augusta Uniformed Firefighters Association, Local 1650, International Association of Firefighters, AFL-CIO, is the certified bargaining agent, within the definition of 26 M.R.S.A. Section 962(2), of a bargaining unit composed of the uniformed members of the Augusta Fire Bureau, "excepting only the Director of Public Safety and Chief Officers." 2. The City of Augusta is the public employer, within the meaning of 26 M.R.S.A, Section 962(7), of the employees whose job classifications are included in the above-mentioned unit and of the Platoon Chiefs. 3. The Platoon Chiefs are public employees, as defined in Section 962(6) of the Act. 4. There is no question concerning representation raised in this proceeding. 5. Currently the Fire Bureau is under the command of the Director of Public Safety. The rest of the chain-of-command, in order of rank, is a follows: Deputy Fire Chief, Platoon Chief, Captain, Lieutenant, Sergeant and Private. The labor relations policies for the Platoon Chiefs, as well as for all of the other Fire Bureau employees, are determined by the Director of Public Safety and by the collective bargaining agreement between the Employer and the Union. 6. During 1978, the Augusta Fire and Police Departments were placed, as separate bureaus, into a unified Public Safety Department, under the command of a Director of Public Safety. At the same time, the Fire Bureau was reorganized and, through attrition, the positions of Battalion Chief and Captain were eliminated. The position of -2- ______________________________________________________________________ Platoon Chief was created during this reorganization. 7. The Battalion Chiefs had never been included in the bargaining unit, described in paragraph 1 above, while the Captain position had always been included in the unit. The table of organization of the department has always included the position of Sergeant, as has the recognition clause of the collective bargaining agreement, but this position has never been filled. The salary scale negotiated in the collective bargaining agreements over the years, including the scale in the current agreement, has always included a wage level for the Captain and Sergeant positions. 8. Since the creation of the position, during negotiations or otherwise, the union has never sought to clarify the recognition clause with regard to the position of Platoon Chief, nor has it ever sought to negotiate the wage level for this position. The City has consistently asserted the view that the Platoon Chief position is within the definition of "Chief Officers" and thus excluded from the bargaining unit. 9. In the past, the officer positions in the bargaining unit - Captains and Lieutenant - have always assumed leadership positions in the union and have regularly served on the union negotiating team. Since creation of the Platoon Chief position, incumbents of that position have never served as officers of the Union, nor have they served on its negotiating teams. The position has never been included in the salary scale of any collective bargaining agreement. The salary for the position is not negotiated at the bargaining table, but rather is set by the City Council when other general government salaries are voted upon, although it has generally "tracked" the nego- tiated scale. The Platoon Chiefs have not been under a misconception that their salary level is determined by the collective bargaining process rather than by Council action. 10. The 1967 and 1968 collective bargaining agreements between the parties exempted "the Fire Chief and Deputy" from the uniformed -3- ______________________________________________________________________ firefighters' bargaining unit. The 1969, 1970-1971, 1973, 1974-1975, 1976, 1977-1978, 1979-1981, and 1982 collective bargaining agreements between the parties excluded "the Fire Chief and Chief Officers" from the bargaining unit. The 1983-1984 agreement, however, exempted "the Director of Public Safety and Chief Officers," which was a change included among the City's demands during negotiations. 11. The work performed by the Platoon Chiefs includes directing firefighting operations at the fire scene, assigning inspection work, and supervising the care of equipment and living quarters at the fire station. The Platoon Chiefs also engage in firefighting activities and in building inspections. Their principal function at the scene of a fire is to supervise and organize the firefighting activities. In general, the principal functions of the Platoon Chiefs are characterized by the performance of such management control functions as assigning, overseeing, and reviewing the work of subordinate employees and otherwise performing supervisory functions. The posi- tion of Platoon Chief is a supervisory position as that term is defined in the Act. 12. The Platoon Chiefs, like the other employees in the relevant unit, receive a weekly salary, based on a 54-hour work week, and are eligible for overtime pay. When first created, the Platoon Chiefs received a rate lower than the Captain rate. In subsequent years the rate was the same as the contract rate specified for the Captain posi- tion. At present the rate for Platoon Chief is somewhat higher than that negotiated for the Captain position. 13. The Platoon Chiefs receive all of the benefits outlined in the collective bargaining agreement for the relevant unit, work the same hours as the unit employees, and, like said employees, reside at the fire station while on duty. The Battalion Chiefs worked different shifts from the unit employees, but also resided in the stations when on duty. Advancement within bargaining unit positions is controlled by the bidding and seniority provisions of the collective bargaining agreement, whereas the position of Platoon Chief is within the appoint- -4- ______________________________________________________________________ ive power of the City and not so controlled. 14. The Platoon Chiefs possess the same basic qualifications as the unit employees; however, they have greater skill and training, commensurate with their higher rank and greater experience. 15. The Platoon Chiefs are in constant contact with the unit employees and there is a good deal of interchange between them in that, when the Platoon Chiefs are absent, they are replaced by Lieutenants. 16. The incumbent Platoon Chiefs have expressed the desire to be included in the current Uniformed Firefighters bargaining unit. 17. As bargaining unit members, the Lieutenants have not experienced problems or conflicts in performing their supervisory duties. 18. Platoon Chiefs attend Union meetings and have discussed collective bargaining proposals, concerning wages and benefits, with members of the Union bargaining team. 19. The proposed job description for the position of Platoon Chief is in many ways identical with that for the Fire Captain classi- fication. Of the eight "Examples of Work" listed in the former docu- ment, five were taken almost verbatim from the latter. Eight of the ten "Requirements of Work" in the Platoon Chief's draft job descrip- tion are essentially identical with those listed in the Fire Captain specification. The position has been described in testimony as being a combination of the Battalion Chief and Captain positions. 20. There are four employees in the Platoon Chief classification and three Lieutenants. -5- ______________________________________________________________________ DISCUSSION AND DECISION Among its objections[fn]1 the City has claimed that the petition of the Union is barred by Rule 1.13, Unit Clarification, of the Board's Rules and Procedures. We must therefore first dispose of this objection before we can proceed with any consideration of the substance the of Union's petition. Rule 1.13(A) provides in relevent part that a petition for unit clarification may be denied if "(a) the description of the job categories contained in the bargaining unit is clear and unequivocal . . . or (c) if the petition attempts to modify the composition of the bargaining unit as negotiated by the parties and the alleged changes therein have been made prior to negotiations on the collective bargaining agreement presently in force." The essential portion of the facts related above which touch on the procedural objection raised by the City are these: In 1978 the City reorganized its public safety apparatus by abolishing the then separate Police and Fire departments and creating a unified Department of Public Safety under the head of a Director of Public Safety. The positions of Chief in each of the old departments were abandoned and the former Chiefs became Deputy Chiefs in newly constituted bureaus under the Department of Public Safety. Simultaneously, the positions of Battalion Chief and Captain in the Fire Department (now Fire Bureau) were phased out and the position of Platoon Chief was created. Whereas prior to the 1983-1984 collective bargaining agreement the exception clause of the agreements between the parties excluded "the _______________ 1 The Issues on Appeal filed by the City raised the following issues: "1. That the hearing examiner erred by not granting the City's Motion to Dismiss the petition because of the language in the collective bargaining agreement which excluded from the bargaining unit the Director of Public Safety and Chief Officers. 2. That the hearing examiner erred by including the Platoon Chief classification in the Augusta uniformed Firefighters bargaining unit." -6- ______________________________________________________________________ Fire Chief and Chief Officers," at the request of the City the language of exclusion was changed in the 1983-1984 agreement to, "the Director of Public Safety and Chief Officers." The City contends that since Platoon Chiefs are "Chief Officers, then it follows the position is excluded from the bargaining unit by definition. The Union on the other hand takes the position that the term "Chief Officers" was negotiated into the agreement at a time when the Battalion Chief posi- tion existed and it was intended to cover that position or positions at that level and above. It claims that "Platoon Chiefs" are in reality "captains" under another guise and consequently should be included in the bargaining unit. The facts as adduced on the record lead us to the conclusion that the Union has failed to overcome the threshold obstacle of Rule 1.13(A) sub-paragraph (c) and we must therefore dismiss the petition. The facts show that the Union is aware that the Platoon Chief salary level is an item established not by the negotiations process, but rather is set by the City Council along with the salary of other general government (non-unionized) employees. Similarly whereas opportunity for advancement within the bargaining unit is subject to the seniority clause of the collective bargaining agreement the posi- tion of Platoon Chief is not, but rather it is an appointive position free of the contract posting and seniority requirements. In addition, the Union has never sought to include the salary of the Platoon Chiefs in the contract salary scale or to list the position in the agreement, even though it continues to negotiate the rate for the dormant posi- tions of Captain and Sergeant. It is also of some interest that the City successfully negotiated a change in the exclusion provision of the Recognition Clause by substituting "Director of Public Safety" for "Fire Chief," while on the other hand the evidence shows that the Union, for reasons unexplained, failed to raise the matter of the Platoon Chiefs' uncertainty at any of the intervening negotiations since the creation of the position, or indeed at any other time. In light of the fact that the Union has known that the pay rate for the Platoon Chief position has been adopted independently of the contract settlement and that the position is not subject to the bidding and -7- ______________________________________________________________________ seniority provisions of the collective agreement, it is unreasonable to assume that the Union was misled by management, or that the Union leadership maturely believed the position was a re-creation of the abandoned Captain position with merely a new title. The facts are that the City public safety services went through a significant admi- nistrative and structural change and the Union had full knowledge of these changes years before negotiations on the contract currently in place. In light of this background, and particularly considering that at least two collective bargaining agreements have been negotiated since the creation of the Platoon Chief position during which the union failed to raise the issue posed by this petition, the conclusion is inescapable that the threshold standard of Rule 1.13(A), sub- paragraph (c) should be applied. We will therefore dismiss the peti- tion without considering the merit of the Union's claim.[fn]2 Having concluded that the Union's unit clarification petition cannot stand, we do not reach the substantive issue raised by the petition, that is, whether it is appropriate to include the position of Platoon Chief in the Firefighter bargaining unit. We intimate no opinion whatever about the propriety of so doing, nor concerning whether a supervisory officers unit would be appropriate. Nothing in this decision is intended to prejudice the right of either party to file a petition consistent with the provisions of the Act and Rules _______________ 2 This does not appear to be a case justifying discretion in the application of Rule 1.13. The evidence as clarified at the appeal hearing placed the facts in a posture precluding the exercise of discretion. We note that Rule l.13(A) sub-paragraph (a) may also support dismissal of the petition, since "the description of job descriptions contained in the bargaining unit is clear and unequivocal." [Emphasis supplied] The Platoon Chief position is found nowhere among the posi- tions "contained in the bargaining unit." -8- ______________________________________________________________________ and Procedures of the Board.[fn]3 ORDER On the basis of the foregoing findings of fact and decision and by virture of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4), it is ORDERED: That the appeal of the City of Augusta of the Unit Clarification Report of December 12, 1984 is upheld and petition for Unit Clarification is hereby dismissed. Dated at Augusta, Maine this 21st day of February, 1985. MAINE LABOR RELATIONS BOARD /s/_________________________________ The parties are advised William M. Houston of their right to seek Alternate Chair review of this report by the Superior Court by filing a complaint pur- suant to 26 M.R.S.A. /s/_________________________________ 968(4)(Supp. 1983-84) and Linda D. McGill 972(1974) and in accordance Alternate Employer Representative with Rule 80B of the Rules of Civil Procedure within 30 days of the date of this decision. /s/_________________________________ Russell A. Webb Alternate Employee Representative _______________ 3 For a discussion comparing unit determination and unit clarifica- tion proceedings, the evidentiary requirements of each, the element of timing affecting each, and the effect of a question of representation, see Bangor and Local 1599, International Association of Fire Fighters, MLRB No. 80-A-03 (July 18, 1980). We also note parenthetically that Counsel for the City stated on the record that the City would recognize a Supervisory Officer unit consisting of Platoon Chiefs alone or Platoon Chiefs, Captains and Lieutenants. However, this is for the parties to pursue, if they so desire. -9- ______________________________________________________________________