Case No. 16-UD-06
Issued: June 3, 2016








     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 

     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
     Joint Exhibit 2, Current job description for the Fire Captain
     Joint Exhibit 3, Personnel Policy of the Town of Paris
     Joint Exhibit 4, Current job description for the Firefighter         
     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
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 

     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.


     The jurisdiction of the executive director to hear this 
matter and to make a determination lies in 26 M.R.S. § 966(1) and 


     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.


     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 

     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 

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 
 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]


     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 

Dated at Augusta, Maine, this 3rd day of June 2016


				   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]