City of Ellsworth v. Ellsworth Fire Fighters Association, No. 92-UDA-01, affirming 91-UD-19

City of Ellsworth v. Ellsworth Fire Fighters Association, MLRB No. 92-UDA-01
(Sept. 10, 1991), Affirming MLRB No. 91-UD-19 (Aug. 2, 1991).

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
						   Case No. 92-UDA-01
						   Issued:  September 10, 1991


______________________________________
				      )
CITY OF ELLSWORTH,                    ) 
				      )
		 Appellant,           )
				      )
		    v.                )               DECISION AND ORDER
				      )          ON UNIT DETERMINATION APPEAL
ELLSWORTH FIRE FIGHTERS ASSOCIATION,  )
				      )
		  Appellee.           )
_____________________________________ )

     On May 30, 1991, the Ellsworth Fire Fighters Association ("Association")
filed a petition for unit determination with the Maine Labor Relations
Board ("Board") pursuant to section 966 of the Municipal Public Employees
Labor Relations Law ("MPELRL"), 26 M.R.S.A.  966 (1988 & Supp. 1990) and
the Board's Unit Determination Rules.  In its petition, the Association
sought a determination that a unit of Ellsworth Fire Department employees
would appropriately include, among others, the Deputy Fire Chief.

     In a Unit Determination Report dated August 2, 1991, the hearing
examiner concluded that the Deputy Fire Chief is appropriately included in
the unit.  The City of Ellsworth ("City") contends in its appeal that the
hearing examiner erroneously concluded that the Deputy Fire Chief is a
public employee within the meaning of 26 M.R.S.A.  962(6).

			       JURISDICTION

     The Appellant, the City of Ellsworth, is an aggrieved party within the
meaning of 26 M.R.S.A.  968(4) (1988), and is the public employer within
the meaning of 26 M.R.S.A.  962(7) (Supp. 1990).  The Ellsworth Fire
Fighters Association is a public employee organization that seeks to
become the bargaining agent of employees in the sought-after unit within
the meaning of 26 M.R.S.A.  962(2) (1988).  The jurisdiction of the Board
to hear this appeal and to render a decision lies in 26 M.R.S.A.  968(4)
(1988).
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			     FINDINGS OF FACT

     1.  The hearing examiner issued his unit determination report on August
2, 1991.  By letter dated August 5, 1991, he sent a corrected cover page to
the parties, reflecting the accurate case number (No. 91-UD-19); the origi-
nal report contained an incorrect number on the cover page.

     2.  On August 19, 1991 (by letter dated August 16th), the City filed
a notice of appeal pursuant to 26 M.R.S.A.  968(4) (1988) and Board
Rule 1.12(A), and filed the memorandum of appeal required by Rule 1.12(B)
on August 27, 1991 (dated August 26th).  The Association was served with
its copy of the memorandum on September 4, 1991.

				DISCUSSION
				
     As an initial matter, during the hearing on appeal the Association
requested that the appeal be dismissed on the ground of untimeliness.
Rule 7.03 of the Board's Rules and Procedures states that filing of a sub-
mission with the Board is completed on the date it is received at the
Board's offices.  Rule 1.12(A) requires filing of a notice of appeal within
fifteen calendar days of the date of the unit determination.  Rule 1.12(B)
requires filing of a memorandum of appeal within twenty calendar days of
the later of either the issuance of the unit determination or receipt of
the hearing transcript, if one is requested.  That rule also requires
simultaneous service of the memorandum on the opposing party.

     The original unit determination report was issued on August 2, 1991,
and the August 5th correction in the cover page was simply that.  Therefore,
the Board concludes that the August 2nd issuance date is the operative date
for the purposes of Rule 1.12.  Since the City filed its memorandum of
appeal on August 27th, that submission was untimely. We note also that even
if the operative date for issuance of the unit determination were August
5th rather than August 2nd, the City's memorandum of appeal would be un-
timely. Consequently, the Association's request for dismissal of the
appeal must be granted.
				
				 -2-

				ORDER

     On the basis of the foregoing discussion and by virtue of and pursuant
to the powers granted to the Maine Labor Relations Board by the provisions
of 26 M.R.S.A.  968(4) (1988), it is ORDERED:

     1.  That the appeal of the City of Ellsworth is denied, and that
	 the unit determination report is affirmed in its entirety.

     2.  That the executive director shall cause to be conducted a
	 bargaining agent election in the bargaining unit of City of
	 Ellsworth Fire Department employees, as established in
	 Unit Determination Report No. 91-UD-19.
	 
Dated at Augusta, Maine, this 10th day of September, 1991.

				    MAINE LABOR RELATIONS BOARD


The parties are hereby advised
of their right, pursuant to 26      /s/_____________________________
M.R.S.A.  968(4) (1988), to        Peter T. Dawson
seek review of this Decision        Chair
and Order on Unit Determination
Appeal by the Superior Court.
To initiate such a review an        /s/_____________________________
appealing party must file a         Howard Reiche, Jr.
complaint with the Superior         Employer Representative
Court within thirty (30) days
of the date of receipt hereof,
and otherwise comply with the       /s/_____________________________
requirements of Rule 80C of the     George W. Lambertson
Maine Rules of Civil Procedure.     Employee Representative

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Maine.gov
