STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Case No. 16-UD-06
Issued: June 3, 2016
TEAMSTERS UNION LOCAL 340,
Petitioner,
and
TOWN OF PARIS,
Employer.
UNIT DETERMINATION
REPORT
PROCEDURAL HISTORY
This unit determination proceeding was initiated on
December 28, 2015, when Mr. Ed Marzano, Business Agent for
Teamsters Union Local 340 ("Union"), filed a petition for unit
determination with the Maine Labor Relations Board ("Board")
requesting the creation of a bargaining unit of firefighters
employed by the Town of Paris, consisting of "[a]ll Firefighter
per diem employees, including the Captain: and excluding the "Fire
Chief and all other positions." The petition was filed pursuant
to § 966(1) and (2) of the Municipal Public Employees Labor
Relations Law ("Act"), 26 M.R.S. § 961 et seq. The Town of Paris
("Town") filed a timely response to the petition on January 13,
2016. Pursuant to Chapter 11, § 11(1) of the Board's Rules, the
Town challenged the adequacy of the showing of interest filed in
support of the petition and included an alphabetical list of the
employees in the classifications identified by the petitioner for
inclusion in the proposed unit. The showing of interest was
examined and found to be sufficient as to form, as required in
Chapter 11, § 8(1) of the Rules, and sufficient in number to meet
the requirement in Chapter 11, § 8(11) of the Rules. In addition,
the Town objected to the granting of the relief sought because the
[end of page 1]
"entire proposed unit is composed of per diem employees who work
irregular 'on call' schedules, and are, therefore, excluded from
the definition of public employee by virtue of §962(6)(G) of the
Act and cannot be included in any bargaining unit, as provided in
§ 966(1). The Town further averred that the Captain position is a
supervisory employee, within the meaning of § 966(1), and should
not be included in the same bargaining unit as the other per diem
firefighters.
Due notice having been given, an evidentiary hearing on the
petition was held at the Board hearing room in Augusta, Maine, on
March 30, 2016. The Union was represented by Mr. Marzano, who was
accompanied by Union Business Agent Ray Cote; and Matt Tarasevich,
Esq., accompanied by Ann Freeman, Esq., appeared on behalf of the
Town. Prior to commencement of the formal hearing, the Town
withdrew its objection to the Captain position being included in
the proposed unit on the basis of an alleged supervisory status,
but continued to maintain that the Captain classification, which
is filled by a per diem employee, and the other per diem Fire-
fighters are not public employees because they are "on call,"
within the exclusion set forth in § 962(6)(G) of the Act.
The parties then reviewed the exhibits each intended to offer
and agreed to the following joint exhibits, which were admitted
into evidence:
Joint Exhibit 1, An organizational chart for the Paris Fire
Department
Joint Exhibit 2, Current job description for the Fire Captain
position
Joint Exhibit 3, Personnel Policy of the Town of Paris
Joint Exhibit 4, Current job description for the Firefighter
position
Joint Exhibit 5, 15-month work schedule (January, 2015
through March, 2016)
Joint Exhibit 6, Paris Fire Department Call List, with EMS
[end of page 2]
certification highlighted
Joint Exhibit 7, Work schedule for a per diem Firefighter, to
be completed and turned in to the Fire Chief
no later than the 15th of the preceding month
Joint Exhibit 8, Actual time worked by per diem Fire
Department employees, Jan. 2016
Joint Exhibit 9, Actual time worked by per diem Fire
Department employees, Feb. 2016
Joint Exhibit 10, Actual time worked by per diem Fire
Department employees, Mar. 2016 to date of
hearing
The final exhibit offered by the Union was marked Union 2[fn]1 and is
the same document as Joint Exhibit 6, except that the names of the
individual per diem firefighters were highlighted and followed by
"*" on this exhibit. Union Exhibit 2 was admitted without
objection.
The Union presented two witnesses: Fire Captain Mark
Blaquiere and Firefighter Zachary Creps. After the Town announced
that it was not calling any witnesses, the hearing examiner called
Fire Chief Brad Frost as a witness.[fn]2 The parties filed
simultaneous main briefs on May 25, 2016, and simultaneous reply
briefs on June 1, 2016, which have been considered in reaching
the instant decision.
JURISDICTION
The jurisdiction of the executive director to hear this
matter and to make a determination lies in 26 M.R.S. § 966(1) and
(2).
STIPULATIONS
The parties stipulated to the following facts:
1 Union Exhibit 1, a compilation of hours worked by several of the per diem
firefighters, was used to refresh a witness' recollection, but was not offered
into evidence.
2 Chapter 11, § 24 of the Board Rules provides that this is an investigatory
proceeding, whose purpose is "to develop a full and complete factual record."
[end of page 3]
1. Fire Chief Brad Frost is the sole full-time employee of
the Paris Fire Department.
2. The Deputy Chief of the Paris Fire Department is excluded
from the proposed bargaining unit.
3. The Fire Captains are per diem employees and should be
treated like the per diem Firefighters.
FINDINGS OF FACT AND DISCUSSION
The Town has not challenged Petitioner Teamsters Union Local
340's status as a public employee organization, within the meaning
the meaning of § 962(2) of the Act. The Town of Paris is a public
employer within the definition of § 962(7) of the Act. Like
countless other Maine towns, the Town of Paris has historically
relied on volunteer citizen-firefighters for its community fire
suppression needs. As their forebears had done for generations,
the citizen/volunteers, referred to as the "call company," turned
out in response to alarms and worked to extinguish blazes in the
Town.
Due to demographic and economic changes in recent years, the
Town recognized approximately five years ago that they could no
longer rely on "on-call" citizen/volunteers to respond to alarms
during the normal workweek, 6:00 a.m. to 6:00 p.m., Monday through
Friday. To fill the void, the Town started hiring per diem
firefighters. At other times, a sufficient number of citizen/
volunteers are generally available and respond to alarms to meet
the Town's needs. All members of the fire department carry pagers
and, except during the hours of 6:00 a.m. to 6:00 p.m., Monday
through Friday, all may (but are not required to) respond to alarm
calls. While the per diem firefighters can respond to pager calls
when they are off-duty (and those who live in Paris often do so),
per diems who live out of town often report to their own town's
fire station to provide "mutual aid" to the Paris department.
[end of page 4]
The per diem Firefighter and Fire Captain positions are those
at issue in this proceeding. Unless discussing differences
between them, both classifications will be referred to as per diem
firefighters in this decision. Section 966 (1) of the Act pro-
vides that "anyone excepted from the definition of public employee
under section 962 may not be included in a bargaining unit."
Section 962(6)(G) excludes from the statutory definition of
"public employee" any person "[w]ho is a temporary, seasonal or
on-call employee." The Town contends that the per diem fire-
fighters are "on-call" employees and exempt from the coverage of
the Act. The Board has held that, since the public policy
reflected in the Act is to grant public employees the right to
bargain collectively, the exceptions from the coverage of the Act
must be narrowly construed. Town of Topsham and Local S/89
District Lodge #4, International Association of Machinists and
Aerospace Workers, No. 02-UCA-01, at 12 (MLRB Aug. 29, 2002).
The most recent decision interpreting and applying the "on-
call" exclusion is Teamsters Union Local 340 and City of
Westbrook, No. 13-UD-01 (Feb. 13, 2013). The hearing examiner in
Westbrook discussed the "on-call" exclusion as follows:
The MLRB has held that '"[t]he point of the temporary,
seasonal, or on-call' exclusion is to exclude those
employees who, because they work irregularly or
sporadically, 'do not have a community of interest with
the permanent, full-time employees in the unit."'
Council 74, American Federation of State, County and
Municipal Employees, AFL-CIO and County of Knox, MLRB
82-UD-17 (Jan. 18, 1982), citing Town of Berwick and
Teamsters Local Union No. 48, MLRB No. [80]-A-05 at 3
(July 24, 1980). In Council 74, matrons served in the
same capacity as corrections officers, but only if
either a woman was arrested and detained at the jail
pending bail, or was sentenced to serve a term of
incarceration in that facility. In the first situation,
the matrons were called in to work from a rotation list
maintained at the jail; in the second situation, the
[end of page 5]
scheduling was on a temporary basis. In those
instances, the hearing officer concluded, because the
matrons' work duties were contingent on events beyond
the control of the employer and their time worked
"sporadic and intermittent," the work was "clearly an
on-call system." Council 74, at 5.
City of Westbrook, at 10. The holding in Knox County was based on
the distinction between the regularly-scheduled part-time
employees in Berwick and the matrons at the Knox County Jail.
Unlike the matrons, who only worked when there was a female in
custody at the jail, the reserve police officers in Berwick
supplemented the regular officers weekend nights and were
scheduled for their shifts by the Police Chief, who posted the
schedule by the month. 80-A-05 at 2. Since they worked closely
with the full-time officers, the Board agreed with the
hearing examiner that "traditional community of interest considerations
control the determination whether an employee is a temporary,
seasonal or on-call employee." 80-A-05 at 3.
In addition to citing Westbrook and Knox County, discussed
above, the Town also cited AFSCME Council 93 and Penobscot County
Sheriff's Department, No. 12-UC-03 (Aug. 20, 2013) for the
proposition that the hours actually worked by the part-time
employees at issue are important in "evaluating the status of
public employees." Brief on behalf of the Town at 2. Like
Westbrook and Knox County, Penobscot County was a case where the
petitioner was seeking to include part-time employees in an
existing unit exclusively consisting of full-time employees.
The hours worked by the part-time employees was the focus of the
analysis because an alleged increase in work hours of the part-
time employees as a group was the basis of the petitioner's
attempt to establish the substantial change in circumstances
prerequisite for a unit clarification. 12-UC-03, at 9. Finding
that the nature of the part-time employees work was unchanged in
[end of page 6]
the 30 years since the formation of the bargaining unit involved,
the hearing examiner concluded that the petitioner had failed to
establish the requisite substantial change to warrant a unit
clarification, "notwithstanding fluctuation in the number of part-
time employees and the total number of part-time hours worked
per year." 12-UC-03, at 10.
Despite concluding that no substantial change had been
established, the hearing office in Penobscot County went on to
discuss the lack of community of interest between the part-time
employees and the full-time employees in the bargaining unit at
issue. The work schedules in Penobscot County were established
weekly and were not finalized until two days before taking effect;
therefore, the hearing examiner concluded that the part-time
employees' schedules were "more akin" to the matrons' schedules in
Knox County and should not be included in the bargaining unit with
the full-time employees. 12-UC-03, at 11-12. On appeal, the
Board concluded:
We find no error in the Hearing Examiner's legal
conclusion that the changes in the hours worked by part-
time employees during this period were not a sufficient
change in circumstances to warrant proceeding with the
unit clarification.
AFSCME Council 93 and Penobscot County, No. 14-UCA-01, at 8 (Dec.
17, 2013). The Board's holding reduces the hearing examiner's
community of interest discussion to dicta.
The Board went on to state:
AFSCME further argues that the unique circumstances
of the case justify granting the unit clarification
petition, as the hearing examined did in AFSCME Council
93 and State of Maine, No. 89-UC-07 (Aug. 10, 1990)
aff'd No. 91-UCA-02 (Feb. 12, 1991), aff'd sub nom
Bureau of Employee Relations v. MLRB, 611 A.2d 59 (Me.
1992). Reliance on that case for the proposition that a
[end of page 7]
remedy should be made available is misplaced, as it
involved the denial of the protections of the statute
through improperly classifying employees as temporary,
seasonal or on-call, that is, employees who are excluded
from coverage of the collective bargaining statute. In
the present case, the part-time employees have not been
denied any protections of the Act. The part-time
employees are free to organize themselves into a
bargaining unit by filing a unit determination and
election petition. As they are not part of an existing
bargaining unit, there is no contract bar to the
creation of their own bargaining unit. They may wish to
be a separate bargaining unit, or they may wish to
eventually merge with the bargaining unit of the Line
Unit Corrections Division through the process in § 966
(4).
Id. at 8-9 (footnote omitted). The Board went on to clarify that,
while the community-of-interest test is applied when the issue is
whether to assign a part-time classification to an existing
bargaining unit, the test is different when dealing with an
exclusionary designation.
In a line of cases that examined exclusionary designations
pursuant to the "temporary, seasonal or on-call" provision itself,
the Board has focused on the meaning of the statutory provision,
rather than relying on comparisons between the employees at issue
and the employer's regular work force. This precedent
incorporates the critical elements from the analysis in the
Board's prior cases, but provides an over-arching approach to the
"temporary, seasonal or on-call" statutory exclusion. The Board
has held that exclusionary designations under this provision
should be based on "the objective standard of determining, in the
totality of the circumstances, whether the employee involved may
be said to have a reasonable expectation of continued employment."
Council 93, AFSCME v. Town of Sanford, No. 90-07, at 14 (MLRB
[end of page 8]
June 15, 1990). Among the factors to be considered in the
determination are:
1) the degree of control the employer has over events
surrounding the hiring of the employee in question;
2) the existence of a definite termination date or an
event that will trigger termination; 3) the
employer's past experience with hiring similarly
situated employees into permanent positions (that is,
the employer's hiring preference policy); 4) what
employees are told regarding future employment when
they are hired; 5) the stability of the employer's
labor requirements and the extent to which the
employer is dependent on the employees at issue on a
continuing basis; and 6) the duration of the fixed-
term appointment and/or whether employees are hired
for successive fixed-term appointments.
AFSCME Council 93 and State of Maine, No. 89-UC-07, at 39
(Aug. 10, 1990), aff'd, 91-UCA-02 (MLRB Feb. 12, 1991), aff'd sub
nom Bureau of Employee Relations v. Maine Labor Relations Board,
611 A.2d 59 (Me. 1992). Since the Town of Paris has no full-time
firefighters, except the Fire Chief, this analysis is more
appropriate in the instant situation.
The difference between the Town's call company firefighters
and the per diem firefighters is a good example of the first
criterion in the reasonable expectation test. Members of the call
company respond to an alarm (pager) call when there is an
emergency situation--a structure fire, motor vehicle collision, or
medical event--that is beyond the Town's control. The per diem
firefighters, on the other hand, are assigned to work specific 12-
or 10-hour shifts, with the staffing determined exclusively by the
Fire Chief and published at least two weeks before the schedule
takes effect.
During the first 6 months of using per diem firefighters
approximately five years ago, Chief Frost scheduled the per diems
[end of page 9]
manually. Then, the current "Fire Manager" computer program was
adopted. The per diem firefighters access the "Fire Manager"
program, each with a user name and password, and employees put in
their availability a month at a time. The Fire Chief schedules
each month in advance and issues the schedule on the afternoon of
the 15th of the month preceding the month covered by the schedule.[fn]3
Captain Blaquiere usually offers the Paris Department his
availability for all shifts, Monday through Friday, each month.
Depending on his wife's schedule, Mr. Creps typically offers
availability for 3-4 days per week in Paris and works there
approximately 2 days per week. Most of the per diem firefighters
work full- or part-time for one or more other employers.
The Fire Chief has sole discretion in scheduling the per diem
firefighters; in doing so he applies the following criteria that
he established:
1) Since the Fire Department is the first responder for the
Town of Paris for medical emergencies, under PACE, the Chief's top
priority is to have an EMT on each shift;
2) The next priority is to have someone on each shift who is
qualified to drive all the vehicles in the department, including
the tank truck and the ladder truck; and
3) There should be a firefighter, with at least a Firefighter
1 qualification.
Three per diem firefighters are scheduled for each 12-hour
shift -- 6 a.m. to 6 p.m., Monday through Friday, and two per diem
firefighters are scheduled for each 10-hour shift -- 7 a.m. to 5
p.m. on Saturdays and Sundays. In selecting persons to fill each
shift, the Chief aims to equalize the assignments, as nearly as he
3 Approximately 6 Paris firefighters, including Captain Blaquiere and
Firefighter Zachary Creps, also work as per diems at the Oxford Fire Department,
which also uses Fire Manager. Since the Oxford schedule is finalized on the 20th
of the month preceding the month being scheduled, the Paris per diem
firefighters know their Paris work schedule when they enter their availability
for Oxford.
[end of page 10]
can. He does this by assigning shifts to those who offer the
least availability first, then assigning shifts in inverse
proportion to the number of shifts offered by each individual,
until he completes the schedule with those who offer the greatest
availability. As the Chief schedules individuals to particular
shifts, the computer program keeps track of the total number of
hours assigned to each employee.
The balance of the time is covered by call company fire-
fighters exclusively, weekday and weekend nights, or supplementing
the assigned per diem firefighters, weekend days. The call
company includes those per diem firefighters who live in Paris who
are not on scheduled duty. Call company firefighters do not have
access to the Fire Manager program. They do not respond to alarms
weekdays when the per diem firefighters are scheduled to work.
Call company firefighters work weekdays only when a scheduled per
diem firefighter cannot work a scheduled shift and are unable to
locate another per diem to fill in. This occurs rarely.
The facts relating to the fifth reasonable expectation
criterion were discussed above. About 5 years ago, the Town
recognized that they could no longer rely on call company fire-
fighters to respond to alarms weekdays between the hours of 6:00
a.m. and 6:00 p.m. and required the per diem firefighters for
community fire suppression and emergency medical response
services. Several per diem firefighters submit their availability
several months in advance, indicating the stability of the Town's
requirement for per diem firefighters on a continuing basis. The
sixth factor, the recurrent employment of the same people by an
employer, is met here by the Fire Chief assigning weekday and
weekend shifts exclusively from the pool of per diem employees.[fn]4
4 No evidence was presented at the hearing regarding the second, third, fourth
and sixth reasonable expectation criteria. The second factor, a fixed
[end of page 11]
Applying the Board's reasonable expectation of continued employ-
ment test, I conclude that the per diem Firefighters, including
the Fire Captains, are regularly-scheduled part-time employees of
the Town of Paris and are public employees within the definition
of 26 M.R.S. § 962 (6).
While they are public employees with collective bargaining
rights under the Act, the question remains whether the per diem
firefighters, as a group, share the requisite community of
interest to constitute an appropriate bargaining unit. 26 M.R.S.
§ 966(2). The Board has codified its traditional 11-point
community of interest analysis in Chapter 11, § 22(3) of its Rules.
The first factor is the "similarity in the kind of work
performed." All of the per diem firefighters perform the same
work, responding to fire and emergency medical calls and engaging
in fire suppression activities in the Town of Paris. Outside of
these high-visibility activities, the three per diem firefighters
on-duty are expected, on a day-to-day basis, to under-take the
various chores that are listed in the "man" box at the fire house.
All three on-duty firefighters are expected to work on completing
these chores and the senior person on duty is responsible to make
sure the work is done. In addition, the Fire Chief assigns a crew
to each particular vehicle in the department. The highest ranking
person on that crew is responsible for monthly inspection and
[fn 4 cont'd.] termination date or event that will trigger termination, is particularly
significant in assessing whether an employee is temporary, particularly when the
triggering event is something beyond the control of the employer. The third
factor, the employer?s hiring preference, is important when considering the
status of persons serving as replacements for regular employees, as was the
subject of the acting-capacity Mental Health Worker I employees in the State of
Maine case cited above. The fourth factor, what the employee is told when
hired, can be important when, for example, a permanent regular employee accepts
a temporary assignment, after being told that she could return to her regular
position when the grant that funded the temporary position expired. Teamsters
Local 340 and City of Presque Isle, No. 92-UD-10, at 33 (Aug. 18, 1992).
[end of page 12]
testing to make sure all equipment on the truck is functioning
properly. Calls are usually answered using Engine 4 because it's
an "all around truck," with jaws of life, EMS equipment, and fire
suppressing foam. With only 3 per diem firefighters on duty,
Engine 4 can address most calls on a day-to-day basis. In the
case of a structure fire, Engine 3 is the first to respond. On a
mutual aid call, the on-duty firefighters bring whatever type of
vehicle is requested, whether it be a tanker, ladder truck, or
engine, regardless of what vehicle to which a firefighter is
"assigned." At a fire scene, the Fire Chief is in charge, if
he's present (he usually is); if not, then the highest ranking
officer or private present is in charge.
In addition to the first factor, the following community-of-
interest considerations also support the conclusion that the per
diem firefighters share a clear and identifiable community of
interest:
2) common supervision and determination of labor relations policy
-- all of the per diem firefighters are supervised by the Fire
Chief and, unless expressly excluded thereby, the labor relations
policies for all the per diem firefighters are determined by the
Town personnel policy; 3) similarity in the manner of determining
earnings -- all of the per diem firefighters are compensated on an
hourly basis; 4) similarity in employment benefits, hours of work
and other terms and conditions of employment -- none of the per
diem firefighters receive paid time off; all work 12-hour shifts,
Mondays through Fridays, 6 a.m. to 6 p.m.; and, to the extent that
they are not excluded thereby, the terms and conditions of
employment for all of the per diem firefighters are set by the
Town of Paris Personnel Policy; 5) similarity in the qualify-
cations, skills and training of employees -- all of the per
[end of page 13]
diem firefighters are expected to have (or to obtain "within
established timeframes"): State of Maine Firefighter I and II
certifications, CPR certification, EMT certification, Haz-Mat
Operations Lever certification, and Emergency Vehicle Driver
Certification; 6) frequency of contact or interchange among the
employees -- The per diem firefighters all work three-person
shifts, weekdays, at the fire department -- it is possible that
each per diem firefighter will work with all others, over time;
7) geographic proximity -- all of the per diem firefighters are
based at the Paris Fire Department facility, from which they
respond to emergency calls; 10) extent of union organization --
the Union is proposing to represent all of the employees at the
Paris Fire Department that are eligible for representation; and
11) the employer's organizational structure -- the Fire Department
is a separate department of the Town.
The following factors have a neutral impact on the community
of interest determination: 3) similarity in the scale of earnings
-- there is no evidence in the record regarding the hourly rates
for any of the per diem firefighters. 8) history of collective
bargaining -- No evidence was produced on the record regarding any
history of collective bargaining involving the employees at issue;
and 9) desires of affected employees -- as required by the Act, at
least 30% of the employees in the proposed bargaining unit have
signed showing of interest documents in support of the petition.
Weighing and considering the several community-of-interest
factors separately and together, I conclude that the per diem
Firefighters and Fire Captains employed by the Town of Paris share
a clear and identifiable community of interest as required by
§ 966(2) of the Act and, together, constitute an appropriate
bargaining unit for purposes of collective bargaining.
[end of page 14]
CONCLUSION
On the basis of the foregoing findings of fact and discussion
and by virtue of and pursuant to the provisions of 26 M.R.S.A.
§ 966, the hearing examiner ORDERS:
1. The petition for unit determination brought by
Teamsters Union Local 340 is granted.
2. The per diem Firefighters and Fire Captains employed
by the Town of Paris are public employees within the
meaning of 26 M.R.S. § 962(6).
3. The per diem Firefighters and Fire Captains employed
by the Town of Paris share a clear and identifiable
community of interest, as required in 26 M.R.S. § 966(2),
and constitute an appropriate bargaining unit within the
meaning of 26 M.R.S. § 966(1).
4. A representation election for the Town of Paris Per
Diem Firefighters and Fire Captains bargaining unit
should be scheduled in the normal course of the Board's
business.
Dated at Augusta, Maine, this 3rd day of June 2016
MAINE LABOR RELATIONS BOARD
/s/____________________________
Marc P. Ayotte
Executive Director
The parties are hereby advised of their right, pursuant to 26 M.R.S.
§ 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 the issuance of this report. See Chapter 10 and Chap. 11 § 30 of the
Board Rules.
[end of page 15]