AFSCME and MSEA and City of Lewiston and Lewiston School Committee. Board Decision of June 6, 1985 affirming Hearing Officer's Interim Unit
Determination Report of April 17, 1985 (note Heading calls it Unit Clarification);
Board decision of August 7, 1985 affirming Hearing Officer's Unit Determination
Report of July 12, 1985, in No. 85-UD-20. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-A-03 Issued: June 6, 1985 ____________________________________ ) COUNCIL 74, AMERICAN FEDERATION ) OF STATE, COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO, ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) REPORT OF APPELLATE ) REVIEW OF INTERIM UNIT and ) CLARIFICATION REPORT ) CITY OF LEWISTON, ) ) and ) ) LEWISTON SCHOOL COMMITTEE. ) ____________________________________) On December 26, 1984, Council 74, American Federation of State, County and Municipal Employees, AFL-CIO (AFSCME) filed petitions for Appropriate Unit Determination and Bargaining Agent Election seeking to represent a unit of employees employed by the Lewiston School Committee (School Committee)/Lewiston City Council (City), occupying the following classifications: Lewiston School: Janitors I; Janitors II; Maintenance Person; Senior Maintenance Person; Principal Clerks; Account Clerks; Clerk Typists; Senior Prin- cipal Clerk; Library Assistants; Store Keeper. Through its petition AFSCME seeks to sever a portion of a unit of the City of Lewiston's general government employees for which the Maine State Employees Association (MSEA) was certified as exclusive collective bargaining agent on March 18, 1983. Hearing of the issues raised by the unit determination petition commenced on January 24, 1985, with opening statements made by AFSCME and the City. The hearing was immediately thereafter continued by the Hearing Examiner. On February 1, 1985, the City filed a motion requesting indefinite stay of the unit determination proceeding pending resolution of two actions before the Superior Court [-1-] ______________________________________________________________________ [Androscoggin Docket Nos. CV-84-384 and CV-84-394] involving the City and the School Committee. The identity of the "public employer"[fn]1 of employees employed at school work sites in the City of Lewiston is one issue before the Superior Court in these cases. The basis of the City's request for stay is the City's contention that the unit determination proceeding, herein, necessarily involves a determination of the identity of the public employer of the employees in the sought-after unit, a determination which the City expects to be made in the pending court actions. Upon consideration of the argu- ments of the parties addressing the propriety of the requested stay, the hearing examiner denied the City's motion in an April 17, 1985 Interim Unit Determination Report. On May 1, 1985, the City appealed the hearing examiner's motion ruling pursuant to Maine Labor Relations Board Unit Determination Rule 1.10. On May 22, 1985, the Board, con- sisting of Chairman Edward S. Godfrey, presiding, Thacher E. Turner, Employer Representative, and Russell A. Webb, Alternate Employee Representative, provided all parties the opportunity to be heard con- cerning the City's appeal. The City was represented by Frederick G. Taintor, Esquire, AFSCME was represented by Mr. John J. Ezhaya, and the MSEA was represented by Shawn C. Keenan, Esquire. The School Committee did not appear; however, Mr. Taintor advised the Board that the School Committee supports the City's appeal. Although the Board possesses the authority to hold unit deter- mination proceedings in abeyance should the need arise, we conclude that no such need is substantiated in the instant case. Having con- sidered the arguments of the parties in their memoranda to the hearing _______________ 1 The term "public employer" is defined in 26 M.R.S.A. 962(7) (Supp. 1984-85) as follows: "Public employer" means any officer, board, commission, council, committee or other persons or body acting on behalf of any municipality or town or any subdivision thereof, or of any school, water, sewer or other district, or of the Maine Turnpike Authority, or of any county or any subdivisions thereof." -2- _____________________________________________________________________ officer[fn]2 and in their oral arguments to the Board, we conclude that the hearing examiner correctly denied the City's motion for indefinite stay of the unit determination proceedings. AFSCME seeks a severance of the proposed bargaining unit from the bargaining unit now existing. The public employer status of the School Committee is only one of several factors that must be taken into consideration in determining the appropriateness of such a severance. See Council No. 74, AFSCME and Teamsters Local Union No. 48, State, County, Municipal and University Employees, No. 84-A-04, slip op. at 11 n.2 (Me.L.R.B. Apr. 25, 1984), cited with approval in, Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 4 (Me.L.R.B. Feb. 6, 1985). That public employer status is, therefore, not dispositive of the issues involved in the instant unit determination. During the hearing of the City's appeal the City was unable to inform the Board of the exact nature of the stipulated issue upon which the court proceedings have purportedly been reported to the Law Court. More specifically, the City was unable to state whether the issue was the validity of the City charter's provisions[fn]3 or the iden- tity of the public employer. It is therefore uncertain that the public employer issue will ultimately be decided by the courts. A fully developed factual record is the sole object of the eviden- tiary hearing conducted in response to a petition for appropriate unit determination. Unit determination proceedings are investigatory and not adversarial. See Maine Labor Relations Board Unit Determination Rule 1.09(D). Although some concern was expressed at oral argument that an initial failure to resolve the public employer issue might adversely affect the progress of the proceeding, we think that a pro- vision, in our order, for separate representation of the interests of the City and the School Committee will resolve any problems in this _______________ 2 No party to the appeal proceeding indicated, upon inquiry, a desire to offer further written argument or legal memoranda. 3 Section 5.03(c) of the Lewiston City Charter states that "any contract negotiated with any bargaining agent representing employees of the school department . . . shall require approval by the city council." -3- ______________________________________________________________________ respect. Accordingly, we agree with the hearing officer's decision that determination of public employer status is an inquiry properly within the special expertise of the Board. Further, we find no valid rationale in the instant controversy which convinces us that relinquishment of our primary jurisdiction is warranted in this case. ORDER For the reasons expressed above and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4) (Supp. 1984-85), is it ORDERED: 1. The hearing examiner's order denying the City's motion for indefinite stay is affirmed. 2. The Executive Director or his designee shall conduct an appropriate unit determination proceeding as soon as possible. 3. Both the City and the School Committee will be permitted to appear as parties before the hearing examiner in the unit determination proceedings directed by this Order. Dated at Augusta, Maine, this 6th day of June, 1985. MAINE LABOR RELATIONS BOARD /s/_________________________________ Edward S. Godfrey Chairman /s/_________________________________ Thacher E. Turner Employer Representative /s/_________________________________ Russell A. Webb Alternate Employee Representative -4- ______________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 85-A-03 Issued: August 7, 1985 _______________________________________ ) COUNCIL 74, AMERICAN FEDERATION OF ) STATE, COUNTY AND MUNICIPAL EMPLOYEES, ) AFL-CIO, ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION, ) REPORT OF APPELLATE REVIEW ) OF UNIT DETERMINATION REPORT and ) ) CITY OF LEWISTON, ) ) and ) ) LEWISTON SCHOOL COMMITTEE ) _______________________________________) This is an appeal of a unit determination report, filed pursuant to 26 M.R.S.A. 968(4) on July 19r 1985, by Council 74, American Federation of State, County and Municipal Employees, AFL-CIO C~Council 74"). The unit determination report, dated July 12, 1985, which is the subject of this appeal, dismissed the petition for unit deter- mination filed by Council 74 on December 26, 1984. Said petition squght to sever those employee classifications with school work sites from the current Lewiston General Government Employees Bargaining Unit. The petition was dismissed on the grounds that insufficient evidence was produced at the unit proceeding to support the requested severance. The procedural history of this case was outlined in our Report of Appellate Review of Interim Unit Determination Report, issued June 6, 1985, and the contents of said Report of Appellate Review are incor- porated herein by reference. The unit determination proceeding, which resulted in the issuance of the unit determination report under review, was conducted pursuant to paragraph 2 of our order of June 6, 1985. At the proceeding below, Council 74's representative moved for a con- tinuance on the grounds that he needed to associate legal counsel to -1- ______________________________________________________________________ properly analyze the pertinent legal issues. All parties made a joint motion that the hearing be postponed, pending the Law Court's decision in the pending civil action between the City of Lewiston and the Lewiston Educational Directors mentioned at pages 1-2 of our June 6, 1985 Report of Appellate Review of Interim Unit Determination Report. A hearing on this matter was held on July 30, 1985, Chairman Edward S. Godfrey presiding, with Employer Representative Thacher E. Turner and Alternate Employee Representative Russell A. Webb. The Appellant, Council 74, was represented by its Coordinator of Field Services, John J. Ezhaya; the Maine State Employees Association was represented by Shawn C. Keenan, Esg.; the City of Lewiston was repre- sented by Frederick G. Taintor, Esq., who was accompanied by Bruce van Note, a law student intern in his office; and the Lewiston School Committee was represented by Brian C. Shaw, Esq., who was accompanied by Lewiston Superintendent of Schools Robert V. Connors. The parties were afforded full opportunity to present evidence, within the stric- tures applicable to this appellate proceeding, and to make argument. JURISDICTION The Appellant, Council 74, American Federatian of State, County and Municipal Employees, AFL-CIO, is a lawful organization which has as its primary purpose the representation of public employees in their employment relations with employers, within the meaning of 26 M.R.S.A. 962(2), and is a party aggrieved by the unit determination report at issue, within the meaning of 26 M.R.S.A. 968(4). The Maine State Employees Association is the certified bargaining agent, within the definition of 26 M.R.S.A. 962(2), for the General Government Employ- ees Bargaining Unit of the City of Lewiston. The City of Lewiston or the Lewiston School Committee or both of them are the public employer, within the definition of 26 M.R.S.A. 962(7), of those employees with school work sites in the City of Lewiston, whose classifications are included in the General Government Employees Bargaining Unit and which Council 74's petition sought to sever therefrom. The jurisdiction of the Maine Labor Relations Board to consider this appeal and render a decision herein lies in 26 M.R.S.A. 968(4). -2- ______________________________________________________________________ FINDINGS OF FACT AND CONCLUSIONS OF LAW None of the findings of fact made by the hearing examiner are in dispute; therefore, the same are incorporated herein by reference. The only evidence offered at the unit proceeding were nine exhibits introduced by the City of Lewiston for the purpose of establishing the nature of the controversy pending before the Law Court between the City and the School Committee. The standard of review, used to eval- uate the correctness of the hearing examiner's actions, is that such findings of fact and conclusions of law will be sustained unless they are "unlawful, unreasonable, or lacking in any rational factual basis." Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO, MLRB No. 85-A-01, at 2 (Feb. 6, 1985). We have examined the hearing examiner's actions in denying Council 74's request for a continuance, in rejecting the parties' joint motion for postponement pending the outcome of the civil actions between the City and the School Committee, and in dismissing Council 74's petition for unit determination. After review of the entire record and consideration of the parties' arguments on appeal, we conclude that the hearing examiner's conclusions are neither unlawful nor unreasonable, under the circumstances, and are consistent with the facts in the record. We must, therefore, deny Council 74's appeal and affirm the unit determination report. ORDER On the basis of 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. 968(4) (Supp. 1984-1985) it is ORDERED: 1. The appeal of Council 74, American Federation of State, County and Municipal Employees, AFL- CIO, of the July 12, 1985 unit determination report is denied. 2. The July 12, 1985 unit determination report, in MLRB Case No. 85-UD-20, is affirmed. The petition for appropriate unit determination filed by Council 74, American Federation of -3- ______________________________________________________________________ State, County and Municipal Employes, AFL- CIO, on December 26, 1984, is dismissed. Dated at Augusta, Maine, this 7th day of August, 1985. MAINE LABOR RELATIONS BOARD /s/_________________________________ Edward S. Godfrey The parties are advised of Chairman their right to seek review of this report of appellate review by the Superior Court by filing a complaint pur- /s/_________________________________ suant to 26 M.R.S.A 968(4) Thacher E. Turner (Supp. 1984-1985) and 972 Employer Representative (1974) and in accordance 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 -4- ______________________________________________________________________