Town of Lebanon and Teamsters, No. 86-A-01, affirming 86-UD-02.
Superior Court affirmed, CV-85-656. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-A-01 Issued: December 5, 1985 _____________________________ ) TOWN OF LEBANON ) ) and ) REPORT OF APPELLATE REVIEW ) OF UNIT DETERMINATION ) TEAMSTERS LOCAL UNION NO. 48 ) _____________________________) This is an appeal of a unit determination report, filed pursuant to 26 M.R.S.A. 968(4) on October 30, 1985, by the Town of Lebanon ("Employer"). The unit determination report, dated October 17, 1985, which is the subject of this appeal, created a bargaining unit con- sisting of the full-time Patrolmen of the Lebanon Police Department and excluding therefrom all other employees of the Town of Lebanon. In this appeal, the Employer has argued that the hearing examiner erred by: (1) concluding that the Reserve Patrolmen of the Lebanon Police Department are on-call employees, within the meaning of 26 M.R.S.A. 962(6)(G), and (2) holding that the full-time patrolmen and the Reserve Patrolmen of the Lebanon Police Department do not share a clear and identifiable community of interest, within the meaning of 26 M.R.S.A. 966(2). A hearing on this matter was held on November 13, 1985, Alternate Chairman William M. Houston presiding, with Alternate Employer Representative Carroll H. McGary and Employee Representative George W. Lambertson. The Appellant Employer was represented by Mark A. Kearns, Esq., and Teamsters Local Union No. 48 ("union") was represented by one of its Business Agents, John A. Perkins. The parties were afforded full opportunity to present evidence, within the strictures applicable to this appellate proceeding, and to make argument. The Union presented its argument orally at the hearing and the Employer filed a post-hearing brief to supplement the written argument which it previously submitted to the hearing examiner. The parties' arguments have been considered by the Maine Labor Relations Board ("Board") in reaching its decision in this appeal. [-1-] ______________________________________________________________________ JURISDICTION The Town of Lebanon is an aggrieved party, within the context of 26 M.R.S.A. 968(4), and is the public employer, within the defini- tion of 26 M.R.S.A. 962(7), of the employees of the Lebanon Police Department. Teamsters Local Union No. 48 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). The jurisdiction of the Maine Labor Relations Board to consider this appeal and to render a decision herein lies in 26 M.R.S.A. 968(4). FINDINGS OF FACT AND CONCLUSIONS OF LAW This unit determination appeal is being conducted pursuant to authority granted to the Board by the relevant provisions of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. 961, et seq. The standard of review, which we use to test the hearing examiner's rulings, is that such findings of fact and conclu- sions of law will be affirmed 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, slip op. at 2 (Feb. 6, 1985); Auburn Firefighters Association and City of Auburn, MLRB No. 83-A-07, slip op. at 4 (Dec. 5, 1983). Our role in this appellate proceeding is not to substitute our judgment for the hearing examiner's, but rather to review the facts to determine whether the hearing examiner's decisions are reasonable and are rationally supported by the evidence. Maine School Administrative District No. 43 Board of Directors and School Administrative District No. 43 Teachers Association, MLRB No. 84-A-05, slip op. at 3 (May 30, 1984). The Employer has averred in this appeal that the hearing examiner erred by: (1) concluding that the Reserve Patrolmen of the Lebanon Police Department are on-call employees, within the meaning of 26 M.R.S.A. 962(6)(G), and (2) holding that the full-time Patrolmen and the Reserve Patrolmen of the Lebanon Police Department do not share a -2- ______________________________________________________________________ clear and identifiable community of interest, within the meaning of 26 M.R.S.A. 966(2). The Employer has argued that its position on both of these issues is supported by our decision in Town of Berwick and Teamsters Local Union No. 48, MLRB No. 80-A-05, slip op. (July 24, 1980). Brief on behalf of the Employer, at 2. The hearing examiner cited Town of Berwick, at page 16 of his report, to illustrate that reserve police officers are not, inherently, excluded as on-call employees by Section 962(6)(G) of the Act and that, in circumstances materially different from those now before us, reserve officers may share the requisite level of community of interest with the full-time officers with whom they serve. After reviewing the instant facts and those before the Board in Town of Berwick, we conclude that the hearing examiner properly distinguished the latter case from that now before us. "[T]emporary, seasonal, or on-call employee[s]" are excluded from the definition of "public employee" by Section 962(6)(G) and cannot, under the provisions of Section 966(1), properly be included in any bargaining unit. Section 962(6)(G) is a codification of case law decided by the National Labor Relations Board. By enacting this sec- tion, the Legislature has deemed that, because of the intermittent, sporadic, or irregular nature of their work schedules, persons in the excluded categories inherently cannot share a sufficient community of interest to be included in a bargaining unit with the full-time employees with whom they work. Town of Berwick, supra, at 3. On the other hand, both the National Labor Relations Board, Dick Kelcher Excavating Co., 236 NLRB 1414, 1415 (1978), and this Board, Town of Berwick, have held that regularly-scheduled part-time employees do not work intermittently or sporadically and may, in some circumstances, share the requisite community of interest to be included in a bargaining unit with full-time employees. The Employer has argued that application of the Town of Berwick holding to the present facts results in the conclusion that the Reserve Patrolmen of the Lebanon Police Department are regularly- scheduled part-time employees and, therefore, are public employees within the meaning of the Act. The facts underlying the holding at -3- ______________________________________________________________________ issue were reported as follows: Under the scheduling of Chief Smith and under Wiswell until quite recently, reserves were called just before an open shift to determine if they wanted to work. Only in the last month or so have reserves worked regularly scheduled days. Wiswell has permitted or required the full-time patrolmen to promulgate the work schedule themselves. Patrolmen may swap shifts at their discretion. With a full complement of three patrolmen and a chief there is no regularly scheduled over- time. With a full complement, only during sicknesses and/or vacations are there hours available to be worked by reserves. Unit Determination Report, at 6-7. These facts establish that, from a period beginning in the indefinite past and extending to a time well after the filing of the unit determination petition, the Reserve Patrolmen did not work on a regularly-scheduled basis and were called in immediately before the shift for which an opening existed. Second, once the Lebanon Police Department returns to its regular complement of full-time employees, the Reserve Patrolmen will again only work on an on-call basis. These facts were not controverted and were in part corroborated by the testimony of the Chairman of the Lebanon Board of Selectmen, Transcript, at 18, and that of Selectman Randall, Transcript, at 31, before the Board. In Town of Berwick, the part- time employees worked year-round every Friday and Saturday night and sometimes during the day on Sunday and they were scheduled for such duty when the department's monthly schedule was promulgated. Town of Berwick, supra, at 2. Comparing the relevant facts of Town of Berwick with those now before us, we conclude that the factual basis of the former case is significantly different from that of the latter. The conclusion, that the Reserve Patrolmen of the Lebanon Police Department are on-call employees within the meaning of 26 M.R.S.A. 962(6)(G), is both lawful and reasonable and is supported by relevant evidence in the record. The exclusion of the Reserve Patrolmen, as on-call employees within the meaning of the Act, from the bargaining unit of law enforcement employees of the Town of Lebanon is hereby affirmed. Although our determination that the Reserve patrolmen are on-call employees is dispositive of the appeal; nevertheless, we will consider the merits of the second allegedly erroneous determination in the unit report. The Employer has argued that the community of interest ruling -4- ______________________________________________________________________ in Town of Berwick, supra, requires a conclusion contrary to that reached below. The Unit Determination Report, at page 16, notes the facts which distinguish the instant case from that before the Board in the earlier action. Because the facts now before us are significantly different from those in Town of Berwick, reliance on the same legal reasoning in both cases leads to a different, but analytically con- sistent, community of interest determination in each. We find that the community of interest determination under review is reasonable and rational. The Unit Determination Report noted that, while some facts tended to show certain similarities between the full- time and the Reserve Patrolmen, the following facts justified a conclusion that the two groups do not share a clear and identifiable community of interest: full-time Patrolmen earn over thirty percent more per hour than do the Reserves; full-time Patrolmen earn vacation leave, the Reserves have no paid vacations; Reserves have no fringe benefits; full-time Patrolmen have first choice as to their hours of work and work many more hours than the Reserves; full-time Patrolmen work on a regularly-scheduled basis and Reserves normally work on a call-in basis; the training required for the full-time Patrolmen is far more extensive and demanding than that received by the Reserves; and there is little contact between the full-time Patrolmen and the Reserves. All of these findings are based upon evidence in the record and these factors are among those which we have used for several years to evaluate the presence or absence of community of interest among employee groups. AFSCME, Council 74 and City of Brewer, MLRB No. 79-A-01, slip op. at 3-4 (Oct. 17, 1979); Penobscot Valley Hospital, supra, at 4. Since the hearing examiner applied the correct standard and relied on pertinent considerations which are supported by the record, the determination that the Reserve Patrolmen do not share a clear and identifiable community of interest with the full-time Patrolmen is affirmed. We will dismiss the Town of Lebanon's appeal, affirm the hearing examiner's report, and order the Executive Director to conduct a representation election for the Lebanon Police Department Law Enforcement bargaining unit as soon as practicable. -5- ______________________________________________________________________ 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. 1985), it is ORDERED: 1. The Town of Lebanon's appeal of the October 17, 1985 Unit Determination Report is denied. 2. All findings and conclusions in the Unit Determination Report are affirmed. The Lebanon Police Department Law Enforcement bargaining unit is composed of all full-time employees in the Patrolman job classification. 3. The Executive Director shall conduct a representation election for the members of the Lebanon Police Department Law Enforcement bargaining unit as soon as practicable. Dated at Augusta, Maine this 5th day of December, 1985. MAINE LABOR RELATIONS BOARD The parties are advised of /s/________________________________ their right to seek review William M. Houston of this report by the Alternate Chairman Superior Court by filing a complaint pursuant to 26 M.R.S.A. 968(4) (Supp. 1985) and 972 (1974) and in /s/________________________________ accordance with Rule 80B Carroll R. McGary of the Rules of Civil Alternate Employer Representative Procedure within 30 days of the date of this decision. /s/_______________________________ George W. Lambertson Employee Representative -6- ______________________________________________________________________