Inhabitants of the Town of Lebanon v. MLRB and Teamsters, No.
CV-85-656, affirming 86-A-01 and 86-UD-02. STATE OF MAINE SUPERIOR COURT FRANKLIN, ss. CIVIL ACTION Docket No. CV-85-656 INHABITANTS OF THE TOWN ) OF LEBANON ) Plaintiffs ) ) v. ) DECISION AND ORDER ) MAINE LABOR RELATIONS BOARD ) and TEAMSTERS LOCAL UNION ) NO. 48 ) ) Defendants ) Introduction This case is before the court on plaintiffs' appeal from the decision of the Maine Labor Relations Board excluding part-time reserve police officers from the Teamster's Union collective bargaining unit The appeal is pursuant to 26 M.R.S.A. 968(4) and Maine Rule Civil Procedure 80B. For the reasons discussed below, the appeal is denied. Statement of Facts On August 15, 1985, the Teamsters Local Union #48 filed a petition for an appropriate unit determination for the purposes of collective bargaining, seeking to include the full time patrolmen and to exclude all part-time reserves and other employees of the Town of Lebanon. A hearing was held pursuant to 26 M.R.S.A. 967 which resulted in the issuance of a report dated October 17,  ______________________________________________________________________ 1985. The report held, inter alia, that the part-time reserve officers would be excluded from the bargaining unit. This decision was appealed to the Labor Relations Board ("The Board") before which a hearing was held on November 13, 1985. The Board upheld the unit determination report based upon its findings that: ... The reserve patrolmen did not [ordinarily][fn]1 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 ... [Finally,] while some facts tended to show certain similarities between the full time and the reserve patrolmen [other] facts justified a conclusion that the two groups do not share a clear and identifiable community of interest [list of facts omitted]. Report of Appellate Review of Unit Determination at 4. Thus, the Board concluded that the Hearing Examiner's findings were lawful, reasonable and supported by relevant evidence in the record; and it upheld the determination that the reserve patrolmen are on-call employees and therefore excluded from the bargaining unit of law enforcement employees. The Town has appealed[fn]2 that decision. Discussion Under the Maine Municipal Public Employees Labor Relations Law, 26 M.R.S.A. 961-972 (1974), "public" employees have the ___________________ 1 The Board found that the reserve officers were currently scheduled for specific and unusually long hours only because the department was temporarily understaffed. 2 This court assumes without deciding that the Inhabitants of the Town of Lebanon have standing to bring this appeal. 2 ______________________________________________________________________ right to join labor organizations. Employees who have been employed for less than six months or who are temporary, seasonal or on-call employees, are not considered "public employees", see 26 M.R.S.A. 962(6)(F) and (G), and therefore do not have a protected right to join unions, are not members of any bargaining unit and thus do not receive the wages and benefits of a unionized employee. City of Bangor v. A.F.S.C.M.E., Council 74, 449 A.2d 1129 (Me. 1982). Because the Board found that the reserve officers were "on-call" as opposed to regularly scheduled part-time employees, they were deemed excluded from the organized bargaining unit. In a unit determination proceeding, the Labor Relations Board's findings of fact are final in the absence of fraud. Baker Bus service v.Keith, 416 A.2d 727, 730 (Me. 1980). Since there is no indication of fraud in this case, the Board's findings will not be disturbed. Furthermore, this court finds that the Board's conclusion drawn from the facts is not erroneous. It should be noted that the Board's decision in Town of Berwick and Teamsters Local Union No. 48, MLRB No. 80A-05 (July 24, 1980) (reserve officers were not "on call" employees) is not controlling here. In that case, unlike here, the part-time reserve officers "worked year-round on regularly scheduled shifts, worked closely with full time officers, were on the Town's regular payroll and received some of the fringe benefits of full-time officers." See Unit Determination Report at 16. Thus, the Berwick reserve officers were not considered to be "on call." In addition, the Berwick reserve officers were found to share a "community of 3 ______________________________________________________________________ interest" with the full time patrolmen. The Labor Relations Board, relying on the Unit Determination Report, pointed out that . . . 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. Report of Appellate Review of Unit Determination at 5, and concluded that the Lebanon reserve officers do not share a "community of interest" with the full-time officers. This court finds that the conclusion that the reserve police officers are "on call" employees and that they do not share a "community of interest" with the full-time officers is supported by substantial evidence on the record as a whole. Therefore, the Board's decision will be upheld and plaintiffs' appeal will be denied. The Order will be: Plaintiffs' Appeal is DENIED. Dated: February 3, 1987 /s/____________________________ Roland Cole Justice, Superior Court 4 ______________________________________________________________________