STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Case No. 07-UD-22
Issued: October 26, 2007
STEPHEN MAREAN,
Petitioner,
LOCAL 740, INTERNATIONAL ASSOCIATION OF FIRE FIGHTERS,
Certified Bargaining Agent,
and
CITY OF PORTLAND,
Respondent.
UNIT DETERMINATION REPORT
PROCEDURAL HISTORY
This unit determination/severance proceeding was initiated
on April 13, 2007, when Stephen Marean ("Petitioner"), a
paramedic employed by the Portland Fire Department, filed a
petition for unit determination/severance with the Maine Labor
Relations Board ("Board").[fn]1 The petition seeks a determination
whether a unit consisting of Firefighter/Paramedics, Firefighter/
Paramedic Lieutenants, and Paramedic in the EMS division should
be severed from the existing Portland Firefighters bargaining
unit pursuant to Sections 966 and 967 of the Municipal Public
Employees Labor Relations Law ("MPELRL"). The Petitioner seeks
to retain the same bargaining agent, Local 740, International
[fn] 1 The proper mechanism to seek the severance of a group of
employees from a bargaining unit is to file a petition for a unit
determination, as the Petitioner has done here. The Board Rules do
not provide for a petition for "severance" per se; however, for ease
of reference, the petition will be referred to as one for severance
for the remainder of the decision.
[end of page 1]
Association of Firefighters ("Union" or "IAFF"), as the agent for
this smaller bargaining unit. Both the Union and the City of
Portland ("Employer" or "City") filed a timely response to the
petition.
A hearing notice was issued on August 24, 2007, and was
posted for the benefit of affected employees. The hearing was
conducted on September 26, 2007. Petitioner Stephen Marean
appeared on behalf of himself. Stephen Sunenblick, Esq.,
appeared on behalf of the Union. Elizabeth Boynton, Esq.,
appeared on behalf of the City. The parties were afforded full
opportunity to examine and cross-examine witnesses, and to
present evidence. The following witnesses were presented at the
hearing: for the Petitioner, Stephen Marean; for the Union,
Union President Bobby Reynolds; and for the City, Fire Chief Fred
LaMontagne. The parties declined to present oral or written
argument at the conclusion of the hearing.
JURISDICTION
The jurisdiction of the attorney examiner to hear this
matter and to make an appropriate unit determination herein lies
in 26 M.R.S.A. § 966. All subsequent statutory references are to
the MPELRL, Title 26, M.R.S.A.
EXHIBITS
The following exhibits were moved into evidence and admitted
to the record without objection of the parties:
Joint Exhibits
1. July 1, 2005-June 30, 2007 Collective Bargaining
Agreement
2. December, 1995 Final Report & Recommendations to the
Portland Fire Department, Greenshoe Group
3. July 1, 1996-June 30, 1998 Collective Bargaining
Agreement, prior to 1997 merger amendment
[end of page 2]
4. July 1, 1996-June 30, 1998 Collective Bargaining
Agreement, after 1997 merger amendment
5. July 1, 1998-June 30, 2001 Collective Bargaining
Agreement
6. July 1, 2001-June 30, 2003 Collective Bargaining
Agreement
7. July 1, 2003-June 30, 2005 Collective Bargaining
Agreement
8. Portland City Charter provision Article 6, Section III,
re: Civil Service Rules for Fire and Police
9. December 30, 1996, Memo to Portland City Council from
Charles Harlow, Chair of the Public Safety Committee,
to Mayor McDonough and Members of the [Portland City]
Council re: Civil Service Ordinance changes
10. January 6, 1997 City Council Order #184 approving Civil
Service Ordinance charges re: Merger [Passed by 9-0
vote on January 22, 1997]
11. September 6, 2007 List of all employees in the Local 740
bargaining unit
12. July 8, 1996 Letter from Robert Bourgault to Jan
Hastings of Maine Education Association re: proposed
MEDCU merger with Local 740
13. December 6, 1996 Letter to Marc Ayotte from Robert
Bourgault re: Disclaimer of Interest of Medcu
Association
14. December 6, 1996, Letter to Marc Ayotte from President
and Vice President of Medcu (Jennifer Stewart and
Timothy Nangle) re: conditional request to disclaim
interest
15. December 6, 1996, MLRB Form 1, Agreement on Appropriate
Bargaining Unit
16. December 6, 1996, MLRB Form 3, Voluntary Recognition
Form
17. December 11, 1996 Letter to Marc Ayotte from Mark Gray,
Executive Director of Maine Education Association, re:
Disclaimer of Interest
18. December 20, 1996 Letter from Marc Ayotte to Robert
Bourgault, Portland Education Association, Maine
Education Association, Medcu Employees Association and
City of Portland re: Merger of the bargaining units
19. January 6, 1997 Memo from Timothy Nangle, Vice President
of Medcu, to Trisha Peightal re: Merger with Local 740
20. Portland Fire Department 2006 Annual Report
Petitioner Exhibits
1. Organizational Chart listing Martin Jordan as Chief of
Department
[end of page 3]
2. December, 1995 Final Report & Recommendations to the
Portland Fire Department, Greenshoe Group
7. January 5, 2006 Report of the Portland Fire Department
Labor/Management EMS Committee: Final Recommendations
8. MEDCU "Policies and Procedures Guidelines Manual"
9. Medcu collective bargaining agreement for July 1, 1994 -
June 30, 1996
City Exhibits
1. Portland Fire Department Organizational Chart
Union Exhibits
1. Portland Firefighters Local 740, IAFF - Constitution and
By-Laws
2. Standard Operating Guidelines - Portland Fire Department
STIPULATIONS
The parties agreed to the following factual stipulations:
1. Local 740, International Association of Firefighters,
(hereinafter "Local 740") is a public employee organization that
is the certified bargaining agent for all full-time employees,
within the meaning of 26 M.R.S.A. §962(2), in the City of
Portland Fire Department.
2. The City of Portland is a public employer within the
meaning of 26 M.R.S.A. §962(7).
3. The collective bargaining unit represented by Local 740
consists of all permanent public employees in the following
classifications: Firefighter, Firefighter/Paramedic, Paramedic,
Paramedic Lieutenant, Fire Lieutenant, Fire/Paramedic Lieutenant,
Fire Captain, Education and Quality Improvement Officer and
Public Education Officer.
4. The City of Portland has 8 fire stations on the mainland
and a Marine Division at the Maine State Pier. In addition, the
City has equipment on Peaks Island, Great Diamond Island, Cushing
[end of page 4]
Island, Cliff Island and Little Diamond Island which are staffed
by Island volunteers.
5. In addition to fire apparatus at each station, there are
4 ambulances stationed throughout the city. ALS (Advanced Life
Support) medical equipment and gear is also carried on all fire
vehicles.
6. The Fire Department currently consists of the following
divisions for budgetary purposes: Fire Administration, Fire
Suppression and Fire Emergency Medical Services (EMS). Unit
employees cross-trained in both firefighting and EMS may be
assigned regularly or temporarily to either the fire suppression
or to the EMS division.
7. As of 2007, new hires in the Fire Department below the
rank of Chief or Deputy Chief are required to have an EMT-Basic
license at the time of hire as a firefighter; and upon hire, are
put through fire drill school for firefighting and are required
to go to EMT-Intermediate training, and obtain the Intermediate
license.
8. As of September 6, 2007, there were 231 employees
covered by the bargaining unit. All but 1 of the employees are
trained as Firefighters.
9. The bargaining unit consists of the following:
230 Firefighters/Officers
141 have an EMT Basic license (EMT-B)
18 have an EMT Intermediate license (EMT-I)
49 have a EMT Paramedic license (EMT-P)
22 have no medical license
1 Paramedic, without firefighter training,
Stephen Marean, petitioner.
[end of page 5]
10. The command structure of the Department is as follows:
Non-union: 1 Fire Chief, 6 Deputy Chiefs, Bargaining Unit
Positions (regardless of licensure): Captain (including
prevention and training), Lieutenant, Firefighter and petitioner
Paramedic.
11. The Fire Chief reports to the City Manager, who in turn
reports to the elected City Council. The City Manager appoints
all City employees other than the City Clerk and the Corporation
Counsel, who are appointed by the City Council.
12. Prior to January 1, 1997, Portland Firefighters, Fire
Lieutenants and Fire Captains ("fire suppression") were in a
separate bargaining unit represented by Local 740.
13. Prior to January 1, 1997, Portland Paramedics and
Paramedic Lieutenants were in a separate bargaining unit named
the Medcu Employees Association (hereinafter "Medcu"), an
affiliate of the Maine Education Association and the Portland
Education Association.
14. Medcu employees have always been stationed at Portland
fire stations on a 24/7 basis, and since fiscal year 1982-83,
have been a division of the Portland Fire Department.
15. The 1987-1990 collective bargaining agreement with Local
740 included language regarding reopening the contract to bargain
over the issue of merger with the Medcu unit and was carried
through each contract negotiated after that date to the 1996-89
contract.
16. In 1995, City administration and representatives of both
Local 740 bargaining unit and the Medcu bargaining unit began
meetings with an independent consultant, the Greenshoe Group,
regarding possible merger of fire and emergency medical services.
[end of page 6]
Numerous meetings were held by the consultants with fire
suppression and Medcu members.
17. A labor-management group consisting of representatives
of the City Manager's office, Fire Administration, Medcu and
Local 740 provided the consultant with input and consensus on the
merger issues.
18. The Greenshoe Group outlined the outcome of the
departmental and labor-management group discussions in its final
report in December of 1995. This report recommended merger of
the fire and emergency medical services.
19. In February, 1996, Medcu requested bargaining with the
City as their contract expired on June 30, 1996.
20. Subsequent discussions were held with the City
bargaining team with both Medcu and Local 740 representatives
regarding merger of the two collective bargaining units, (fire
suppression and Medcu) throughout 1996, with numerous formal
bargaining sessions. At all times throughout the merger nego-
tiations, Medcu bargaining unit employees were represented by
Robert Bourgault, an experienced labor relations professional.
21. The above discussions resulted in an amendment to the
1996-1998 collective bargaining agreement between the City and
Local 740 which was ratified by the merged unit and was approved
by the Portland City Council on January 6, 1997.
22. Effective January 1, 1997, the two separate bargaining
units were merged into one unit represented by IAFF, Local 740.
The separate Medcu unit was dissolved and necessary forms were
filed with the Maine Labor Relations Board for the new unit.
23. The hiring of new City of Portland firefighters (and
[end of page 7]
police officers) is governed by the City of Portland Civil
Service Ordinance which provides for a written examination,
physical fitness, [job suitability], physical agility testing,
and background check for these positions.
24. Prior to merger, hiring of EMS personnel was not covered
by the Civil Service Ordinance, but was governed by the City of
Portland general personnel policies for hiring of all non-police
and non-fire personnel.
25. Amendments to the City's Civil Service Ordinance were
approved by the Portland City Council on January 22, 1997. The
amendments merged the hiring of fire suppression and emergency
medical services personnel under the Civil Service Ordinance.
26. Persons employed in the Paramedic and Paramedic
Lieutenant positions at the time of merger were "grandfathered"
in their positions and given a "grace" period during which they
could, at their option, complete the basic fire written
examination and fire drill school training in order to become
firefighter/paramedics. The grace period ended on May 5, 1999.
After that grace period, they would have to go through the
regular civil service hiring process applicable to new employees
to become firefighter/paramedics.
27. All but one employee, Stephen Marean, completed the
special testing process for the "grandfathered" employees and all
former Medcu employees became firefighters in addition to having
paramedic licenses.
28. All employees in the unit are engaged in providing
emergency services to the citizens of Portland and respond to
accident calls, fires, hazardous materials and emergency medical
calls. Both a fire truck and an ambulance are routinely sent to
[end of page 8]
calls in conjunction with one another.
29. All employees in the bargaining unit, other than
Petitioner Marean, are eligible to participate in the Firefighter
"special" retirement plan under the Maine State Retirement System
(MSRS), i.e., retirement at pay after 25 years of service.
Petitioner Marean is not eligible for the Firefighters' special
retirement plan, and is eligible only to participate in the
regular City MSRS retirement plan or in the City's alternative
401(a) plan offered through the International City Manager's
Association to all City employees. Only City employees trained
as firefighters (or police officers) can participate in the
special retirement plan.
30. The current schedule for all employees in the bargaining
unit is 24 hours on; 24 hours off; 24 hours on; and 5 days
off.[fn]2
This schedule is permitted under the Fair Labor Standards Act as
a permissible regular schedule for firefighters, including EMS
personnel who are cross-trained as firefighters. Petitioner
Marean, without the cross-training as a firefighter, is not
eligible for the firefighter overtime pay exemption. Special pay
provisions have been negotiated in each contract that apply only
to petitioner Marean to ensure that he is paid in compliance with
Fair Labor Standards.
31. Since the negotiation of the 1997 merger of the Medcu
and Fire units, the parties have negotiated 4 collective
bargaining agreements: 1998-2001; 2001-2003; 2003-2005 and 2005-
2007--each were July 1 - June 30) and a 1999 amendment to the
1998-2001 agreement regarding the work schedule for the former
Medcu employees.
[fn]2 With the exception of 4 firefighters who perform
administrative duties on a 5-8 or 4-10 schedule.
[end of page 9]
32. Since 1997, employees assigned to the EMS division have
been represented on the Executive Committee and the negotiating
teams for Local 740. All employees in the unit are eligible to
participate in all aspects of union administration.
33. Local 740 does not agree to the proposed severance and
formation of a new unit as proposed in the pending petition.
34. The petition requests that Local 740 represent the
members of the proposed new unit if the severance petition is
granted, and Local 740 has not agreed to represent members of a
new unit if this severance petition is granted.
35. There is no contract bar to this petition.
36. The attorney examiner has jurisdiction, as designee of
the Executive Director, to hear and decision this unit
determination (severance) matter pursuant to 26 M.R.S.A. §966(1)
and §966(2).
FINDINGS OF FACT
1. Approximately 50 firefighter/paramedics (including
firefighter/paramedic lieutenants) are employed by the
Portland Fire Department. Of this number, about 30 are
assigned to the EMS division, meaning that their primary
duty is to staff ambulances. The remaining firefighter/
paramedics work primarily on fire suppression equipment.
2. In recent years, there has been a marked increase in calls
for emergency medical services made to the department.
About 70 percent of the call volume to the department is
related to emergency medical services. Due to a variety of
factors (lack of an additional ambulance, position vacancies
in the EMS division, movement of cross-trained personnel
from the EMS to the fire suppression division, etc.), the
EMS division has had to deal with the increased workload
[end of page 10]
with fewer personnel and resources. This problem has been
well known in the department.
3. Advanced Life Support (ALS) services are those services that
can be provided by EMTs with either a paramedic license or
an intermediate license.
4. The 2005-2007 CBA contained the following wage re-opener in
the salary article:
Fire Department management and labor
personnel will begin meeting immediately to
discuss the manner in which Advanced Life
Support is provided by the Portland Fire
Department. The Committee will complete its
work and will submit its joint recommendation
to the Fire Chief and Union President no
later than December 31, 2005. The Union has
the option to re-open the wage article of the
contract in relation to implementation of the
recommended changes and the City has the
option to re-open other contract articles
that are affected by the recommended changes.
In the event the Labor-Management Committee
is unable to develop a joint recommendation
by December 31, 2005, the Union and the City
will enter negotiations within ten (10)
calendar days of January 1, 2006. The
parties will determine which articles need to
be re-opened in relation to providing this
service to the community and only those
articles will be re-opened. The City will
obtain guidance for these negotiations from
the City Council and both parties will have
full access to impasse procedures as defined
by State statute.
5. The Portland Fire Department Labor/Management EMS Committee
described in the re-opener convened and met from September
to December, 2005. Of the seven labor committee members,
five were paramedics, including a paramedic lieutenant. The
Committee released its final report and recommendations on
January 5, 2006. In the final report, the "problem
statement" was described as follows:
[end of page 11]
The above data supports the statement that
the City of Portland has seen an increase in
the number of EMS responses with little
increase in transporting resources since
1990. There are currently approximately 57
licensed firefighter/paramedics within the
PFD with 32 allocated to the EMS Division,
twenty-eight on ambulances and four EMS
Lieutenants; five positions remain vacant.
Current language in the CBA has allowed the
remaining number of firefighter/paramedics to
bid to fire apparatus. The PFD has attempted
to increase EMS training and fire apparatus
response to EMS calls to assist in its EMS
mission, however, no additional transporting
ambulances have been added.
At present the three current ambulances are
operating at an above normal UHU [unit hour
utilization]. The high UHU, coupled with
unit vacancies due to unfilled positions,
personnel on extended leave, personnel moving
to a fire apparatus position, and normal
vacations, has left the EMS division with
fewer personnel to manage an increased
workload. The increased workload has caused
a "burnout" amongst some EMS division
personnel. Some have bid to fire suppression
apparatus but still remain with the depart-
ment. Further, Portland Fire Department's
EMS system does not have the ability or
system in place to determine when or where
additional transporting ambulances are needed
in the city.
6. In the final report, one of the five identified "objectives
and values" was as follows:
5. Adjust current "corporate culture" within
the PFD whereby dissension exists between
fire suppression and EMS personnel.
a. Environment must be created in which
all members' roles and responsibilities
are valued and held in high regard.
b. May be accomplished through further
integration by:
i. Creation of dual role companies;
ii. Increased paramedic role in
[end of page 12]
outside fire ground and rehabilitation
operations;
iii. Increased role for fire apparatus
EMS personnel in initial assessment,
stabilization, and continued patient
care on EMS calls.
7. The Committee's final report contained a number of both
short-term and long-term recommendations. Some of these
recommendations have been implemented, such as the purchase
of a fourth ambulance for the department. Some of the
recommendations directly affected terms and conditions of
employment and, as the report acknowledged, would require
contract negotiations between the Union and the City. Some
of these recommendations included supporting the development
of "dual role" personnel who could rotate between fire
apparatus and ambulances, encouraging the "ceding" of bid
and assignment rights in order to adequately staff
ambulances, and developing methods to encourage rotation of
EMS personnel to fire suppression and vice versa.
8. Following the release of this report, the Union and the City
negotiated a series of three tentative agreements. In
varying ways, each agreement allowed the City more freedom
to assign fire department personnel to increase EMS coverage
and to decrease overtime expenses, while offering various
wage increases and incentives to fire department personnel.
The agreements also encouraged the creation of more "dual
role" firefighter/paramedics (that is, personnel who would
function both on fire apparatus and on ambulances).
All three tentative agreements were rejected by union
membership, the first by a wide margin, the second two by
narrower margins. The last tentative agreement was rejected
in January, 2007.
9. Chris Boehm, a paramedic and a Union officer, spearheaded
the negotiations for the first tentative agreement.
[end of page 13]
Paramedics were represented on the Union bargaining team to
negotiate all three tentative agreements.
10. The Union and the City have not conducted further
negotiations since the last tentative agreement was
rejected. The collective bargaining agreement expired on
June 30, 2007.
11. In early summer, 2007, the City implemented certain new
personnel assignment methods, in large part to increase
staffing of ambulances and to decrease overtime costs. One
result of this has been increased assignment of EMTs with
intermediate level licensure on ambulances.
12. These newly-implemented assignment methods are the subject
of a grievance brought by the Union. As of the time of this
hearing, the grievance was still being processed under the
step system of the CBA.
13. The Petitioner believes that the increased use of EMTs with
intermediate licensure on the ambulances requires the
paramedics to take on an increased supervisory role without
additional compensation.
14. The 1997 merger of the Medcu and Fire units resulted in a
variety of financial and other benefits for employees in the
Medcu units who cross-trained as firefighters after the
merger. Besides eligibility for the special retirement plan
and the overtime exemption (stipulation nos. 30 and 31), and
coverage by the Civil Service Ordinance (stipulation no.
24), the Medcu employees received a significant pay increase
(20-25 percent) and became eligible for certain health and
death benefits only available to firefighters.
15. Of approximately 44 lieutenants employed by the department,
four are designated EMS lieutenants. Any employee cross-
trained as a firefighter/EMT is eligible (based on years of
service, testing and qualification) to be placed on the
promotion list for any lieutenant position.
[end of page 14]
16. The showing of interest that accompanied the petition filed
in this matter was of the following form: "I, [print or type
name], an employee of [name of employer] desire to have my
job classification [name of classification] excluded from
the [name of unit] unit and placed in a separate new
bargaining unit. I desire to continue being represented by
[name of bargaining agent] for purposes of collective
bargaining." On each showing of interest provided, Local
740, IAFF was identified as the bargaining agent that the
signing employee wished to continue to be represented by.
DISCUSSION
The issue presented by this case is whether a unit
consisting of Firefighter/Paramedics, Firefighter/Paramedic
Lieutenants, and Paramedic in the EMS division[fn]3 should be severed
from the existing Portland Firefighters bargaining unit. The
Petitioner argues that the severance petition should be granted
because the employees of the EMS division share a clear community
of interest, their interests are not served by being in the
larger fire department bargaining unit, and their interests are
not being served by the bargaining agent. Both the City and the
Union argue that the severance petition should be denied because
the present unit shares a community of interest, the unit has a
long and stable history of collective bargaining since the 1997
[fn]3 During the hearing, the witnesses discussed in testimony
whether or not an EMS "division" still exists within the fire
department. Comparing an older organizational chart submitted by the
Petitioner (Petitioner Exh. No. 1) with a chart submitted by the City
(City Exh. No. 1) seemed to suggest that the paramedic/firefighters of
the EMS division are presently assigned to one of four platoons, each
with a chain-of-command consisting of lieutenants, captains, and a
Deputy Chief, but that these employees are not under the direct
supervision of an EMS Lieutenant or an EMS Deputy Chief. Referring to
paramedic/ firefighters as being in the EMS division, whether or not
it is technically a "division," continues to describe those employees
who are assigned primarily to staff ambulances, not to fire
suppression apparatus.
[end of page 15]
merger, and because the Union has provided adequate represen-
tation for the entire firefighters unit.
The Board has ruled that a unit determination petition
accompanied by an adequate showing of interest is the proper
mechanism for attempting to sever a bargaining unit from an
existing unit. See Teamsters Local No. 48 and State of Maine
(Institutional Services Unit), et al., No. 84-A-02 (MLRB Apr. 2,
1984). As a unit determination, this matter turns upon an
evaluation of the presence or absence of a "clear and
identifiable community of interest" per 26 M.R.S.A. § 966(2).
In determining whether employees share the requisite community
of interest in matters subject to collective bargaining, the
following factors, at a minimum, must be considered: (1) simi-
larity 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) similarity in the qualifications, skills and
training among the 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
employer's organizational structure. Chap. 11, Sec. 22(3) of the
Board Rules. The requirement that the hearing examiner examine
the extent of the community of interest was explained by the
Board over 20 years ago, and is still valid today:
Title 26 M.R.S.A. § 966(2) requires that the hearing
examiner consider whether a clear and identifiable
community of interest exists between the positions in
question so that potential conflicts of interest among
bargaining unit members during negotiations will be
minimized. Employees with widely different duties,
training, supervision, job locations, etc., will in
many cases have widely different collective bargaining
objectives and expectations. These different
[end of page 16]
objectives and expectations during negotiations can
result in conflicts of interest among bargaining unit
members. Such conflicts often complicate, delay and
frustrate the bargaining process.
AFSCME and City of Brewer, No. 79-A-01, slip op. at 4 (MLRB
Oct. 17, 1979).
While a petition for severance entails the same analysis of
the community-of-interest factors as any unit determination
petition, the issues are more complex. The hearing examiner must
analyze both whether a community of interest exists amongst the
employee classifications in the proposed bargaining unit to be
severed, and also whether a community of interest exists amongst
the proposed bargaining unit and the larger existing unit. As
the National Labor Relations Board has noted, in its seminal
severance case Mallinckrodt Chemical Works and IBEW, Local No. 1,
162 NLRB 387 (1966), a severance determination requires a
balancing of competing interests:
The cohesiveness and special interest of a craft or
departmental group seeking severance may indicate the
appropriateness of a bargaining unit limited to that
group. However, the interests of all employees in
continuing to bargain together in order to maintain
their collective strength, as well as the public
interest and the interests of the employer and the
plant union in maintaining overall plant stability in
labor relations and uninterrupted operation . . . may
favor adherence to the established patterns of
bargaining.
Mallinckrodt, at 392.
In addition, one of the eleven community of interest factors,
history of collective bargaining, receives heightened scrutiny in
a severance petition. Previous Board decisions have deemed the
history of collective bargaining to be a "very important" and
sometimes the decisive element in severance petitions. Cf.,
e.g., Teamsters Local No. 48 and Town of Winslow and Council No.
74, AFSCME, No. 84-UD-17, slip op. at 11 (MLRB May 31, 1984)
[end of page 17]
(petition to sever fire fighters from public works unit denied;
bargaining history "long" and "fruitful"); Teamsters Local No. 48
and County of Cumberland and Council No. 74, AFSCME, No. 84-UD-11
(MLRB March 16, 1984), aff'd, No. 84-A-04 (MLRB Apr. 25, 1984)
(petition to sever patrol positions from corrections positions
granted; two-year bargaining history cited). The NLRB also finds
the history of collective bargaining to be a key element in
determining severance petitions. Kaiser Foundation Hospitals and
Independent Brotherhood of Skilled Hospital Maintenance Workers,
312 NLRB 933, at 936 (1993) (Board reluctant to disturb
bargaining unit with long history of continuous bargaining, even
where Board would not have found the unit appropriate if
presented with the issue ab initio).
The burden on the petitioner seeking to sever positions out
of an existing unit is high. While severance petitions resolved
by hearing have not been numerous before the Board, the attorney
examiner is aware of only one severance petition that has been
granted in the Board's history, the petition to sever the patrol
positions from the Cumberland County Sheriff's Office bargaining
unit that contained both patrol officers and corrections
officers. Teamsters Local No. 48 and County of Cumberland and
Council No. 74, AFSCME, supra. One MLRB hearing examiner
reviewed precedent from public sector labor boards in other
states, concluding that those cases reflected the " . . . over-
whelming view that severance petitions, while procedurally
permissible, must nevertheless overcome formidable standards for
success." Teamsters Local No. 48 and City of Portland, No. 81-UD-10, slip op. at 15 (MLRB July 10, 1981).
In the present matter, it is quite certain that the
employees whom the Petitioner seeks to sever into a separate
bargaining unit share a community of interest with each other
based on the factors listed above. The issue remains whether
this group of employees shares a community of interest with the
[end of page 18]
remaining positions in the present bargaining unit. Below, the
hearing examiner will more fully discuss each community of
interest factor as it relates to this larger question (bearing in
mind, however, that scant evidence was presented at the hearing
regarding many of these factors).
(1) Similarity in kind of work performed. The vast
majority of the employees in the unit are trained as fire-
fighters, and have some level of EMT licensure (basic, inter-
mediate, or paramedic). On a day-to-day basis, the actual job
function of one employee differs from another employee. For
instance, one employee may work primarily on certain fire
apparatus, while another employee may work primarily on an
ambulance, while yet another employee may work primarily on fire
prevention issues or training. The Board has recognized, how-
ever, that "similar work" does not mean "identical work." As the
executive director has noted in a previous decision, Auburn
Education Ass'n/MTA/NEA and Auburn School Committee, No. 91-UD- 03, slip op. at 11 (Feb. 27, 1991):
In comparing the nature of the work being performed by
the various classifications under consideration, the
essence or basic type of the functions being performed
is far more important than the details of each
position's work responsibilities. Inherent in the
existence of separate job classifications is a
difference in the specific work assignment of each
classification; however, such differences do not
preclude the inclusion of various classifications in
the same bargaining unit.
Here, while work assignments of the various positions in the
department may differ, all the positions in the unit are employed
to provide emergency services to the City. There is a
significant commonality in the essential job functions and goals
of all of the positions. This factor supports a finding of
community of interest between the positions in the bargaining
unit.
[end of page 19]
(2) Common supervision and determination of labor relations
policy. All of the positions in the bargaining unit, including
the supervisory positions (lieutenants, captains), are supervised
by positions within the chain of command. All of the bargaining
unit positions report to one of six Deputy Chiefs, and ultimately
to the Fire Chief. The labor relations policy is uniform for the
positions, based upon the collective bargaining agreement and the
City Civil Service Ordinance. This factor supports a finding of
community of interest between the positions in the bargaining
unit.
(3) Similarity in the scale and manner of determining
earnings. There was little testimony on this issue. A review of
the CBA shows that almost all of the employees in the unit (on
the work schedule as described in stipulation no. 30) are paid on
a weekly basis, depending on rank and years of service in the
position. The CBA also contains a variety of specialty
compensation and stipends paid to employees on a weekly basis,
depending on the classification of the work performed and/or the
licensure of the employee. The Petitioner (the only paramedic
who has not cross-trained as a firefighter) has a separate hourly
pay plan in the CBA; he is not exempt as a firefighter from the
overtime provisions of the Fair Labor Standards Act. This in
itself is not relevant, however, as the Petitioner is not seeking
to be separated from the bargaining unit on his own, but to
separate all the paramedic/firefighters in the EMS division from
the bargaining unit.
There is similarity in the scale and manner of determining
earnings, and this has been true through all of the collective
bargaining agreements for this unit. This factor supports a
finding of community of interest between the positions in the
bargaining unit.
(4) Similarity in employment benefits, hours of work and
other terms and conditions of employment. The employment
[end of page 20]
benefits and other terms and conditions of employment for
positions in the bargaining unit are the same as defined by the
collective bargaining agreement. Almost all of the employees in
the unit work the same schedule (hours of work) as outlined in
stipulation no. 30. This factor supports a finding of community
of interest between the positions in the bargaining unit.
(5) Similarity in the qualifications, skills and training of
employees. Since the 1997 merger, the qualifications, skills and
training of the unit employees have become more similar. As the
stipulations describe in full, all of the employees from the
former Medcu unit, with the exception of the Petitioner, cross-
trained as firefighters within the first two years after the
merger. Most of the firefighters accepted the opportunity to
obtain an EMT license or to increase their level of license; of
the present 230 employees in the unit, only 22 have no medical
license. The requirement for advanced medical licensure has
become more stringent since the merger: since the beginning of
this year, all new hires to the department must have an EMT-basic
license at time of hire and must go to training to earn an EMT-
intermediate license. It is not necessary for the qualifica-
tions, skills and training required of various positions to be
identical in order to be placed in the same bargaining unit.
Nevertheless, the present unit has a great level of similarity in
this regard. This factor supports a finding of community of
interest between the positions in the bargaining unit.
(6) Frequency of contact or interchange among the employees.
There was no evidence specifically presented on this issue.
It appears from the stipulations that the limited number of fire
stations should allow for a significant amount of opportunity for
interchange between the employees in the EMS division and the
other employees in the bargaining unit. This factor supports a
finding of community of interest between the positions in the
bargaining unit.
[end of page 21]
(7) Geographic proximity. See discussion in section (6),
above.
(8) History of collective bargaining. This criterion, as
discussed earlier, is an important one in considering a petition
for severance. Past hearing examiners have examined various
aspects of the collective bargaining history and adequacy of
union representation in evaluating this criterion in severance
petitions. See Teamsters Local No. 48 and County of Cumberland
and Council No. 74, AFSCME, supra (length and stability of bar-
gaining relationship; participation in union affairs by bargain-
ing unit members seeking severance; the offering of special
proposals for the group at bargaining table; whether unit created
by agreement); Teamsters Local No. 48 and City of Portland, supra
(adequacy of union representation in grievances; length and
stability of bargaining relationship; the offering of special
proposals for the group at bargaining table); Teamsters Local No.
48 and State of Maine (Institutional Services Unit), No. 83-UD-25
(MLRB Jan. 10, 1984), aff'd, No. 84-A-02 (Apr. 2, 1984)
(same).[fn]4
[fn]4 Past hearing examiners have relied on National Labor
Relations Board precedent in finding that the history of collective
bargaining and adequacy of representation are important considerations
in severance petitions:
The adequacy of representation by the incumbent bargaining
agent is an important factor in the NLRB's consideration of
severance petitions. See, e.g., Bendix Corp., 227 NLRB
1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-5
(1976). The NLRB holds, however, that 'a union that does
not accede to all demands made upon it by the unit seeking
to be severed cannot be accused of inadequately representing
that unit based on that fact alone.' Firestone Tire and
Rubber Co., 223 NLRB 904, 906 (1976). A number of factors
are considered, including whether members of the proposed
unit have participated in the affairs of the incumbent union
by acting as stewards and bargaining team members, and
whether any special provisions affecting the interests of
the proposed unit have been included in bargaining
agreements. Bendix Corp., 227 NLRB at 1537; Beaunit Corp.,
224 NLRB at 1504.
Teamsters Local No. 48 and State of Maine (Institutional Services
[end of page 22]
The present matter presents a unique history of collective
bargaining in that the petition seeks to separate (at essence)
the EMS employees who were merged with the firefighters ten years
ago. It is important in this matter to note the extensive amount
of work that occurred before these two groups merged; the
magnitude of these efforts can be discerned by reviewing the
final report and recommendations issued in 1995 of the independ-
ent consultant group employed to work with the City and the two
bargaining agents to achieve this merger (Joint Exh. No. 2).
Since the 1997 negotiated merger, four collective bargaining
agreements have been negotiated on behalf of the merged units by
the IAFF. There seems to be no dispute that the merger resulted
in many tangible economic benefits for the EMS employees,
especially those who cross-trained as firefighters after the
merger (all but the Petitioner). Since the merger, EMS employees
have been actively involved in the Union as officers and members
of various bargaining teams. A review of the CBAs over the years
demonstrates that numerous articles have been negotiated for the
benefit of EMS employees.
It is also true that despite cross-training and other
efforts, the merged units are not in complete harmony, nor are
some the EMS employees content with all of the terms and
conditions of their employment. The recommendations of the 2006
labor/management EMS committee made clear that some dissension
exists between the EMS employees and the fire suppression
employees. In recent years, there has been a marked increase in
EMS calls to the Portland system with insufficient personnel to
meet this increase. This issue is well known, resulting in the
convening of the labor/management EMS committee to address this
issue, as well as in the negotiating of three tentative agree-
ments around this issue. The Petitioner further noted in his
[fn 4 cont'd.] Unit), No. 83-UD-25, slip op. at 14.
[end of page 23]
testimony that the recent decision by management to increase
staffing of ambulances with EMTs with intermediate licensure has
placed a greater burden on EMT-paramedics to effectively super-
vise those individuals.
The fact that some problems and dissension exists within the
merged unit far from establishes, however, that the solution lies
in separating the EMS personnel (now all cross-trained as fire-
fighters and EMTs, except for the Petitioner) into a separate
bargaining unit. This is so for several reasons. First, the
issue of increased EMS calls/understaffing has been the focus of
keen study and negotiations on the part of the City and the
Union. Paramedics were well-represented on the labor/management
EMS committee that studied this issue, as well as on the
negotiating teams for each of the three tentative
agreements.[fn]5
The fact that the City began increasing the use of EMTs with
intermediate licensure on the ambulances recently is the subject
of a grievance filed by the Union. None of this demonstrates any
inadequacy of representation on the part of the Union. Second,
the lack of a viable identified alternate bargaining agent to
represent the EMS personnel as a separate unit (the IAFF has not
agreed to represent the group as a separate unit) provides no
basis upon which to conclude that the EMS personnel would be
better represented in a separate unit by a different bargaining
agent. Finally, as the recommendations of the labor/management
EMS committee lays out, not all the solutions to this problem are
within the scope of collective bargaining. Solutions such as the
purchase of additional ambulances or equipment, increase in
training budget, education of health care providers, etc., are
within the purview of management. Severing the EMS personnel
[fn]5 The specifics of these tentative agreements were not
presented. It cannot be concluded from the fact that the three TAs
were voted down by membership that the concerns of the EMS personnel
were not adequately represented during the process. In fact, they
have been well represented.
[end of page 24]
into a separate bargaining unit will have little or no impact on
these areas.
A review of all of the factors traditionally considered as
part of the history of collective bargaining - length and
stability of the parties' collective bargaining relationship,
participation in union affairs by employees seeking severance,
adequacy of union representation - strongly supports a finding
that the EMS employees should not be severed into a separate
bargaining unit. Further, the attorney examiner would be
particularly loath to sever these units without a significant
showing of proof in this area, as doing so would effectively
"undo" the arduous and lengthy process that resulted in the units
merging ten years ago.
(9) Desires of the affected employees. As this hearing
examiner concluded in a previous severance case, the desires of
all employees in the bargaining unit - both the employees who
would become severed and the employees who would remain in the
unit - should be considered in these matters. Such evidence can
take various forms, but has traditionally been presented by
testimony or by affidavit. See e.g. Eric Bell and Richmond
Employees Association and Town of Richmond, No. 03-UD-10 (MLRB
Sept. 26, 2003)(testimony of both groups of employees presented);
Corporals and Sergeants, Cumberland County Sheriff's Office and
County of Cumberland and Council No. 74, AFSCME, No. 02-UD-03
(MLRB May 31, 2002)(signed affidavits from employees supporting
or opposing severance admitted into evidence). At a minimum, it
would be expected that a petitioner seeking a severance should
present evidence that the employees to be severed wish this
change in the status quo.
Here, the Petitioner presented only his own testimony; he
testified, obviously, that he supports the severing of EMS
employees into a separate bargaining unit. The Petitioner did
[end of page 25]
not call any other witnesses, nor did he present affidavits or
any other written evidence regarding the desires of other
affected employees.
The attorney examiner does not believe that the showing of
interest supplied by the Petitioner with the original petition
(filed April 13, 2007) constitutes evidence of the present
desires of the affected employees to be placed in a separate
bargaining unit. The showing is now over six months old. While
the names of the employees signing the showing of interest and
the numbers supplied (other than that it was greater than 30
percent of employees in the unit to be severed, supporting a
sufficient petition) is confidential information, the form itself
is not. The employees who signed the original showing indicated
a desire to be in a separate unit and to continue to be repre-
sented by the IAFF. The IAFF has not indicated a willingness to
represent the EMS employees in a separate unit. In his testi-
mony, the Petitioner seemed to indicate a belief that the
question of severing the bargaining unit would be "put to a vote"
following this determination. In fact, the attorney examiner
here must either decide to sever or not to sever the unit based
on the evidence and testimony presented at the hearing; if the
unit were to be severed, the only vote would be one to elect a
bargaining agent for the severed unit (the IAFF electing whether
or not to be on the ballot as a potential bargaining agent).
This raised the specter that the employees signing the initial
showing of interest might not have understood the severance
process.
There was virtually no evidence that the employees who would
be severed into a separate bargaining unit desire this severance
to occur; this strongly supports a conclusion that the bargaining
unit should remain as presently configured.
[end of page 26]
(10) Extent of union organization. This criterion is not
particularly valuable in evaluating a severance petition. The
City has several other bargaining units of organized employees.
If the EMS employees were to be severed, there would be two City
bargaining units both containing cross-trained firefighter/
paramedics, represented (possibly) by different bargaining
agents. The severance would otherwise have an unknown effect
upon the extent of union organization in the City. This factor
neither supports nor undermines a finding of community of
interest among the positions in the present bargaining unit.
(11) The employer's organizational structure. A review of
the employer's organizational structure does not, in itself,
support the conclusion that the EMS employees form a unit that
should be a distinctive or separate group. The petitioner
expressed concern in his testimony that the EMS "division" no
longer exists, comparing an old organizational chart with a new
one (Petitioner Exh. No. 1; City Exh. No. 1). While the newer
chart shows a less distinct division for EMS employees, the older
chart still divided the EMS employees into placements in four
well-defined platoons, each with a separate chain of
command.[fn]6
To the extent that these charts show any actual change in
organizational structure, this may be attributed to the desire
to more fully merge the functions within the fire department -
fostering true dual-role employees and increased rotation - all
part of the recommendations made by the 2006 labor/management EMS
committee. The organization of these employees within the fire
department has become more integrated, not less integrated over
time. The employer's organizational structure therefore supports
[fn]6 The report of the 2006 labor/management EMS committee
notes that while the merger of the Medcu employees and the fire
employees occurred in 1997, the Medcu employees have been stationed at
firehouses since 1975.
[end of page 27]
a finding of community of interest between the positions in the
bargaining unit.
Summary of community of interest factors. In conclusion,
a review of all of the community of interest factors strongly
supports a finding that the employees in the EMS division share a
community of interest with the remaining positions in the fire
department bargaining unit. The history of collective bargaining
(always an important issue in severance determinations) played a
particularly important role in reaching this conclusion here.
This bargaining unit was created in a unique way, via the merger
of two bargaining units represented by two different bargaining
agents, following a lengthy period of study and negotiation.
The cross-training offered to both units of employees following
the merger, bidding, and other conditions of employment, have
resulted in a significant amount of cohesion in this unit.
The presently-configured unit has a relatively lengthy history of
collective bargaining, with the parties successfully negotiating
four successive collective bargaining agreements. There would
need to be proof of significant discord and disunity amongst the
employees, and a significant failure of representation by the
bargaining agent, in order to "undo" this particular unit.
Nothing like that was presented here.
The history of collective bargaining for this unit
especially distinguishes it from Teamsters Local Union No. 48 and
County of Cumberland and Council No. 74, AFSCME, supra, the only
case known to the attorney examiner where a severance petition
was granted by the Board. In that case, there existed a
significant difference in job function (patrol officers versus
corrections officers), as well as a bargaining history of only
two years, with one CBA. The present matter is considerably
closer in facts to Teamsters Local Union No. 48 and Town of
Winslow and Council No. 74, AFSCME, supra, an unsuccessful
[end of page 28]
petition to sever firefighters from a unit consisting of
firefighters and public works employees that had a ten-year
history of bargaining, with three CBAs negotiated. Further, the
kind of work performed by the employees in the present unit is
far more similar than the kind of work performed by the employees
considered in Winslow.
CONCLUSION
The petition for unit determination filed on April 13, 2007,
by Stephen Marean, seeking the severance of a unit of Fire-
fighter/Paramedics, Firefighter/Paramedic Lieutenants, and
Paramedic in the EMS division from the existing Portland
Firefighters bargaining unit, is denied. These positions will
remain as part of the presently-configured bargaining unit.
Dated at Augusta, Maine, this 26th day of October, 2007.
MAINE LABOR RELATIONS BOARD
____________________________
Dyan M. Dyttmer
Hearing Examiner
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. § 968(4), to appeal this report to the Maine Labor
Relations Board. To initiate such an appeal, the party seeking
appellate review must file a notice of appeal with the Board
within fifteen (15) days of the date of issuance of this report.
See Chapter 10 and Chap. 11 § 30 of the Board Rules.
[end of page 29]