AFSCME and City of Biddeford and Teamsters, No. 87-UC-01, aff'd 87-A-05. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 87-UC-01 Issued: November 14, 1986 _____________________________________ ) LOCAL 2011-04, COUNCIL 93, AMERICAN ) FEDERATION OF STATE, COUNTY AND ) MUNICIPAL EMPLOYEES, AFL-CIO, ) ) and ) ) UNIT CLARIFICATION REPORT CITY OF BIDDEFORD ) ) and ) ) TEAMSTERS LOCAL UNION NO. 48 ) _____________________________________) This unit clarification proceeding was initiated by a unit clari- fication petition dated September 11, 1986, filed by Local 2011-04, Council 93, American Federation of State, County and Municipal Employees, AFL-CIO ("Council 93"). The petition was filed pursuant to Section 966(3) of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 961, et seq. The petition seeks the inclusion of a new clerical position in the Public Works Department in the "Clerical/Secretarial" bargaining unit which is represented by Council 93. Teamsters Local Union No. 48 ("Local 48") represents an existinq unit of "Public Works Non-Supervisory employees"; therefore, Local 48 was given notice of the proceedings and invited to par- ticipate. A hearing in the petition was held on October 22, 1986, in Room 438 of the State Capitol Building, Augusta, Maine. Council 93 was represented by Richard V. Taylor and the City of Biddeford ("Employer") was represented by Paul Gobeil, Treasurer/Administrator for the City of Biddeford. Local 48 was unable to attend the hearing but submitted a letter supporting the inclusion of the position in the Public Works Non-Supervisory unit. Council 93 takes the position that all clerical and secretarial positions now represented, save for the one at issue and for one secretarial position in the Police Dispatchers and Secretarial bargaining unit (also requested by Local 48), are included in the Clerical/Secretarial unit. However, there is one regular part-time [-1-] ______________________________________________________________________ secretarial position in the Fire Department which has been in existence for many years and is not included in any bargaining unit. When the Public Works secretarial position was filled in August, 1986, it was placed by the Employer in the Public Works Non-Supervisory bargaining unit. Council 93 claims that rather than being placed in the Public Works unit the position should be placed in the Clerical/Secretarial bargaining unit since the position has a more intimate community of interest with the positions in the Clerical/Secretarial unit. As stated, Local 48 agrees with the Employer's placement of the position. Council 93 presented the following witness at the hearing: Rachel Cadorette Public Works Secretary The Employer presented the following witnesses: Paul Gobeil Treasurer/Administrative Assistant Theodore Drouin Director of Public Works Wilfred Pombriant Auditor The following exhibits were admitted into the record: Petitioner's Exhibit 1 Announcement for "New Position" dated July 17, 1986 Petitioner's Exhibit 2 Letter from Mr. Taylor to Mr. Gobeil dated August 14, 1986 Employer Exhibit 1 Memorandum from the Negotiation Committee (for the Employer) to Ms. Cadorette dated August 28, 1986 Board Exhibit 1 Collective Bargaining Agreement for the Police Dispatchers and Secre- taries bargaining unit expiring June 30, 1986 Accompanying the petition was the collective bargaining agreement for the Clerical/Secretarial bargaining unit having a term of July 1, 1985, to June 30, 1988. Reference has also been had to materials con- tained in the files of this Board relative to the Public Works Non- Supervisory bargaining unit, the Public Works Supervisory bargaining unit and the Police Dispatchers and Secretarial bargaining unit. At the hearing the parties attending were offered full oppor- tunity to examine and cross-examine witnesses, to present evidence, -2- ______________________________________________________________________ and to make argument. JURISDICTION The Petitioner, Council 93, is the certified bargaining agent within the definition of 26 M.R.S.A. Section 962(2) of a bargaining unit composed of the "Clerical/Secretarial" employees of the City of Biddeford. Local 48 is the certified bargaining agent within the definition of 26 M.R.S.A. Section 962(2) of a bargaining unit con- sisting of "Public Works Non-Supervisory" employees. The City of Biddeford is the public employer within the meaning of Section 962(7) of the Act of the employees whose classifications are included in the aforementioned bargaining units as well as other persons holding posi- tions which will be referred to in this report. The jurisdiction of the hearing officer to hear this matter and to rule on the petition lies in 26 M.R.S.A. Section 966 and is not contested. FINDINGS OF FACT Upon review of the entire record, the hearing officer finds: 1. The Petitioner, Council 93, is the certified bargaining agent within the meaning of 26 M.R.S.A. Section 962(2) for the Clerical/ Secretarial bargaining unit of the Employer. That unit has been in existence for more than 15 years and when originally established con- sisted of all eligible clerks, secretaries and deputies employed in the various offices located in City Hall including the City Clerk's office and the Welfare office, among others. The only person in this bargaining unit who works in a department not physically located in City Hall is the part-time secretary for the Parks and Recreation department, which until recently had been located in the City Hall but is now located in premises about a block away. There are currently 15 employees in the Clerical/Secretarial bargaining unit, a figure which has remained stable over the years despite some changes in the office structure in City Hall resulting in new positions being added and others being eliminated. 2. Local 48 is the certified bargaininq agent within the meaning of 26 M.R.S.A. Section 962(2) for the Public Works Non- -3- ______________________________________________________________________ Supervisory bargaining unit of the Employer. That unit has been in existence for more than 15 years and consists of Laborers, Mechanics, Truck Drivers, Sewer Crew employees, Operators and similar titles. The unit consists of more than 30 employees and excludes Public Works foremen (4 in number) and the Clerk Dispatcher, which positions are in a separate Public Works Supervisory unit also represented by Local 48. The Supervisory unit has existed since 1979. The Public Works department is located in a newly constructed building about 2 blocks from City Hall which serves as a garage for school department and other city vehicles as well as Public Works department road equipment. It performs repairs on all City-owned vehicles, serves as a fuel depot, "rents" vehicles for the use of various City departments, performs road and sewer repair, operates the City waste disposal system, and performs other typical urban public works functions. 3. There is a Clerk/Typist position in the Police Department which is in a bargaining unit consisting of "Police Dispatchers and Secretaries." There are 4 positions in this unit including 3 Dispatchers and 1 full-time Clerk/Typist. This unit has existed since 1978. The employees in the unit work in the Police building which is about one-quarter mile from City Hall. 4. One other secretarial position exists in the City administra- tion. This is a part-time secretarial position in the Fire Department. The employee occupying this position has worked continuously in the position for 18 years. The position is not in any bargaining unit although it is a regular, part-time position. The reason for the position being unrepresented was unexplained at the hearing. 5. All secretarial or clerical positions, whenever situated, are under the immediate supervision of the particular department head. That is, the Fire Department secretary is supervised by the Fire Chief; the Parks and Recreation clerical, by the head of the Parks and Recreation; the Assessor clerk by the Assessor, and so on. Each department head reports to, and is under the supervision of, Mr. Gobeil, although Fire and Police are by Charter under the broad jurisdiction of a public safety commission. -4- ______________________________________________________________________ 6. In the summer of 1986 after the new Public Works building had been completed it was decided to create a clerical position for that department. The position was posted in City Hall and published in the local newspaper. It was posted in City Hall not because that was required by the Clerical/Secretarial labor agreement, but rather because most clerical and secretarial employees in the employ of the City worked in City Hall and it was assumed there would be interest in the opening. Ms. Cadorette, then a member of the Clerical/Secretarial bargaining unit, was the successful applicant, and when she applied she assumed the position would be placed in the Clerical/Secretarial unit. The starting rate was unilaterally set by the City at $5.25 per hour. Ms. Cadorette assumed her position on August 29, 1986, and at the time of the hearing was at $5.51 per hour in recognition of her longevity status. Cadorette left a position paying $7.18 per hour, but was at the top of her scale at the former position. She opted for the new position because of the expectation that she would eventually be working with the computerized system to be installed in Public Works and looked forward to developing her skills in that area. From the beginning, the Employer contemplated that this position would be assigned to the Public Works Non-Supervisory unit and Ms. Cadorette was informed of that fact prior to actually assuming the position. 7. Ms. Cadorette's position in Public Works requires her to per- form typical clerical and secretarial functions such as maintaining the department payroll, processing personnel records, maintaining track of vehicle maintenance, "billing" the appropriate department for use of City vehicles, monitoring fuel usage, and the like. The posting notice for the position stated "the position will require typing, filing, computer data, billing, and other office duties as called upon." Although she shares a common supervision with the laborers, truck drivers and waste disposal personnel in the Public Works department, the nature of her secretarial work is by definition dramatically different from the responsibilities of the remainder of the work force; there is no interchange of job related-functions be- tween the Public Works secretary and the other positions in the department. Consequently, she has little occupational identity with the approximately 40 other employees in the department, except for the -5- _____________________________________________________________________ Clerk-Dispatcher. 8. The Clerk-Dispatcher has certain supervisory responsi- bilities with respect to Ms. Cadorette's position and also performs a number of clerical functions principally related to equipment mat- ters, as well as serving as Public Works dispatcher. In the past the Clerk-Dispatcher had the responsibility for keeping the department's personnel records and time sheets. However, the Clerk-Dispatcher is in the Public Works Supervisory bargaining unit which consists of Public Works Foremen, the Mechanic Foreman and the Clerk-Dispatcher. The Public Works Supervisors are on salary and work a 40-hour standard week. The rank-and-file employees in this department work a standard 40-hour week. Ms. Cadorette works a 35-hour week and is an hourly employee. 9. All the employees in the general Clerical/Secretarial bargaining unit work a 35-hour week and are hourly employees. The Clerk/Typist in the Police department works a 40-hour week. When employed in City Hall Ms. Cadorette for a time served in a "floater" secretarial position and occasionally assisted with clerical or secretarial work in various departments located in City Hall or if someone was absent. She occasionally would spend time in the old Public Works building assisting with clerical work there. Since taking the position with the Public Works department she has had occa- sional contact with employees in the Clerical/Secretarial unit at City Hall on payroll or personnel matters, but she is unlikely to interchange with them in terms of temporary replacement or assisting with work load. Such interchange is not unusual, however, among clerical and secretarial personnel located in the various departments situated in City Hall. 10. All employees of the City receive the same general benefits except for wage and hour scales which may vary among collective bargaining agreements and due to the unique functions of departments as Fire and Police. For example, although the salary structure and hours differ between the Police Dispatchers and the Clerical/ Secretarial unit, other terms of employment are almost identical-- among other items, the vacation schedules are identical and the City pays "100% of present life and medical insurance coverage for -6- ______________________________________________________________________ employees and dependents." 11. Ms. Cadorette testified that her new position should be assigned to the Clerical/Secretarial bargaining unit because she feels her position has a closer occupational identity with those positions than with her fellow employees at the Public Works department. DECISION There is no question that the threshold requirements for pro- ceeding with this Unit Clarification request have been met.[fn]1 No party has questioned the jurisdiction of the Maine Labor Relations Board to proceed and determine the merits of the petition and make a disposi- tion herein. The undisputed facts show that an entirely new clerical position has been created to perform certain typical clerical and secretarial functions for the Public Works department in the newly constructed Public Works department building. The Employer has assigned the posi- tion for inclusion in the Public Works Non-Supervisory bargaining unit which previously had consisted entirely of positions engaged in physi- cal labor or technical work related to carrying out typical public works operations. There is another position in the department which also performs predominantly office-related work for the department, and that is the Clerk-Dispatcher position. That position, however, is a supervisory one and is in the Public Works Supervisory bargaining unit which consists of supervising foremen and the Clerk-Dispatcher. The Employer attempts to justify the unit placement of the new position by claiming that the position has little interchange on a daily or routine basis with employees in the City's Clerical/ Secretarial unit who are almost exclusively located in City ______________________________ 1 There are four procedural pre-requisites to jurisdiction under Section 966(3) of the Act. None are found to bar this petition. (1) The petitioner and Local 48 are the certified bargaining agents for the bargaining units involved herein; (2) the parties have failed to reach agreement on placing the position; (3) the position is new and was not in existence when current collective bargaining agreements were negotiated; (4) there is no question concerning representation respecting either unit. -7- ______________________________________________________________________ Hall where they are employed in the various departments situated therein, such as Assessor, City Clerk, Planning and others. The claim is also made that it would create administrative headaches for one position in the department--particularly the principal office clerical position--to be subject to the terms and conditions of employment con- tained in a different collective bargaining agreement than the rank- and-file unit agreement. It was claimed that vacation schedules, and other matters, would be beyond management's ability to coordinate if the position were to be placed in the existing Clerical/Secretarial unit. Local 48 agrees with the Employer's stance in this instance. In support of its petition, Council 93 argues that the work performed by Ms. Cadorette in her new position has a much closer community of interest with the positions in the Clerical/Secretarial unit from whence she came; that it would hardly be disruptive administratively since, among other things, she now works a 35-hour week (as do cleri- cals in City Hall) while the rank-and-file Public Works employees work a regular 40-hour week. After carefully weighing the positions on either side, the hearing officer is inclined to agree that the position held by Ms. Cadorette should be assigned to the Clerical/Secretarial bargaining unit rather than the Public Works Non-Supervisory unit. Her position shares a more substantial "community of interest" with others in the Clerical/Secretarial unit than with the positions in the Public Works unit. Although it is true that the clerical position in the Police Dispatcher unit has been placed in a separate unit, it is notable that the Dispatcher and Secretary positions were not melded into the general Police Department unit. Also, it is common knowledge that public safety personnel are almost invariably established as distinctive bargaining units rather than immersed or joined with other groups of municipal employees. Except for the Police clerical posi- tion and the Public Works Clerk-Dispatcher, who is in the Public Works Supervisory bargaining unit and not in the rank-and-file unit, there are no regular clerical or secretarial positions (save for the unrepresented Fire Department secretary) which are not assigned to the Clerical/ Secretarial bargaining unit. Given that history and background it is rational that the new position should be placed in -8- ______________________________________________________________________ the existing Clerical/Secretarial unit rather than inserted as a singular clerical position in a rather sizable unit of rank-and-file Public Works employees. To do so would be to unnecessarily isolate her position when there is a well-established, occupationally cohesive bargaining unit with which she shares a community of interest at least as strong as that shared with her Public Works compatriots. Furthermore, the Employer's argument that it would be administratively disruptive to do so was not supported by any evidence of substance. The Employer seemed to be suggesting that the clerical position's working schedule had to be compatible with the operating needs of the department and the scheduling of the department manpower force. This concern is a rational one and perhaps understandable from a management perspective, but is difficult to believe that an accommodation for these needs cannot be met through the collective bargaining process if the difficulties are in areas of negotiability. Finally, contrary to the Employer's entreaty, it may be equally disruptive of sound manage- ment principles to set a precedent for the sporadic placement of clerical positions solely because the work site is somewhere other than City Hall, particularly in light of the long history of a single, cohesive unit of office clerical employees. In evaluating whether the requisite "community of interest" exists among groups of positions as required by Section 966(2) of the Act, this Board has consistently applied eleven criteria The criteria are: "(1) similarity in the kind of work performed; (2) common supervision and determination of labor-relations policy; (3) similarity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarities in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organizational structure." Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01 (Oct. 17, 1979); cited with approval, Council 74, AFSCME and Teamsters Local Union No. 48 and County of Cumberland, MLRB No. 84-A-04, at 11, n.2 (April 25, 1984). In examining these criteria with respect to the facts found by the hearing officer, we see the following distribu- -9- ______________________________________________________________________ tion: 1. There is a very close identity of occupational tasks between Ms. Cadorette's position and the positions in the Clerical/Secretarial unit; there is little occupational identity with the rank-and-file Public Works positions; there is some identity with the supervisory Clerk-Dispatcher position; 2. Although Ms. Cadorette's position is under the general Supervision and direction of the Director of Public Works, this is similar to the organizational structure for other clerical employees who are under the direct general super- vision of their particular department heads; in all in- stances, save for the public safety force, the next level of supervision is Mr. Gobeil's office, who is the final Employer arbiter in labor relations matters for all depart- ments as well; 3. It is unclear what the basis was for establishing the entry wage for Ms. Cadorette's position. Nonetheless it can be assumed that her pay scale will track those of other clerical and secretarial employees rather than other Public Works employees since her hourly schedule has been pegged to City Hall clericals; 4. There is generally a universality of employment benefits throughout the several bargaining units with whom the City negotiates terms and conditions of employment and in several areas the terms of contracts are identical. In applying this criteria it is again relevant that Ms. Cadorette works a standard 35-hour work-week which is the same work-week as the hourly employees in the Clerical/Secretarial unit and which is unique among hourly employees employed by the City of Biddeford; in all other instances hourly employees work a 4O-hour week or some non-standard week; 5. There is a close identity of occupational skills and duties between Ms. Cadorette's position and the positions in the Clerical/Secretarial bargaining unit; there is little identity between the skills and duties required of her posi- tion and those of the rank-and-file Public Works employees; 6. Although there is some contact or interchange between the contested position and the departments or positions represented in the Clerical/Secretarial unit, it is limited to occasional payroll, personnel or billing procedures; she will have some routine contact with other Public Works employees, but little of this will involve occupational skills-related interchange; 7. The new Public Works building is several blocks from City Hall and there is little physical contact between employees in the Public works building, including -10- ______________________________________________________________________ Ms. Cadorette, and employees in City Hall or in the Clerical/Secretarial unit; 8. The history of collective bargaining in the City of Biddeford shows that, with certain isolated and unique exceptions, all clerical and secretarial positions have been represented in the Clerical/Secretarial bargaining unit; in the exceptional situations the position was allied with other public safety positions--as with the Police clerical position--or for unexplained reasons has not been assigned to any bargaining unit--as the Fire department secretary; 9. There is a strong desire on the part of the occupant of the position, Ms. Cadorette, to have her position aligned with the Clerical/Secretarial bargaining unit; the bargaining agent for that unit has expressed the desire to include the position in that unit; 10. There is a long history of collective bargaining in the City of Biddeford covering most groups of its employees; the Public Works rank-and-file employees have been organized for a great many years in a distinct and separate bargaining unit, and the office clerical employees have been organized for a great many years in a distinct and separate bargaining unit; 11. The Public Works department is under the general super- vision of the Director of Public Works who in turn reports directly to the Treasurer/Administrator, Mr. Gobeil; the members of the Clerical/Secretarial bargaining unit are employed in the many departments associated with City Hall and in each instance they are under the general supervision of the particular department head who in turn reports directly to Mr. Gobeil. An analysis of the foregoing criteria indicates a somewhat mixed result with respect to the unit placement of the contested position. However, it is the opinion of the hearing officer that the facts found with respect to criteria 1, 4, 5, 8, 9 and 10 are persuasive in iden- tifying the position with the Clerical/Secretarial bargaining unit rather than with the Public Works Non-Supervisory bargaining unit. Criteria 2, 3 and 11 come out neutral. The facts developed under cri- teria 6 and 7 suggest a more close identity with the Public Works unit. The argument of the Employer that such placement would be disruptive of the orderly administration of that department is not persuasive. On the contrary, placing the position in the Public Works unit may set a precedent which might in the future prove to be disrup- tive of the long history of rather stable collective bargaining in the -11- ______________________________________________________________________ City. The location of a clerical or secretarial position outside the environs of City Hall should not in itself be a dominant consideration in making a unit placement of new or existing clerical positions, par- ticularly in light of the long, established bargaining history in Biddeford which has been highlighted by discreet bargaining units featuring groupings of positions which have close occupational iden- tities. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted in 26 M.R.S.A. Section 966, it is ORDERED: 1. The petition for unit clarification filed by Local 2011-04, Council 93, American Federation of State, County and Municipal Employees, AFL-CIO, dated September 11, 1986, is granted. 2. The newly created Clerical/Secretarial position in the Public Works department occupied by Rachel Cadorette is included in the Clerical/Secretarial bargaining unit. Dated at Augusta, Maine, this 14th day of November, 1986. MAINE LABOR RELATIONS BOARD /s/_________________________________ Robert I. Goldman Hearing Officer 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 the date of this report. -12- ______________________________________________________________________