Board decision affirming No. 16-UD-06.

 

	 The Town of Paris filed this unit determination appeal on 
June 17, 2016, pursuant to 26 M.R.S.A. §968(4) of the Municipal 
Public Employees Labor Relations Law (the "Act") and Chapter 11, 
§30 of the Rules and Procedures of the Maine Labor Relations Board 
(the "Board").  The unit determination report that is the subject 
of this appeal (No. 16-UD-06) was issued on June 3, 2016.  In that 
report, the Hearing Examiner concluded that the employees in the 
proposed bargaining unit were not "on-call employees" within the 
meaning of §962(6)(G) of the Act and were therefore public 
employees covered by the Act.  The Hearing Examiner went on to 
conclude that the proposed unit was an appropriate bargaining unit 
as required by §966(2).
 
     In its Memorandum of Appeal, the Town of Paris challenges the 
Hearing Examiner's conclusion that the per diem firefighters were 
not "on-call" employees excluded from the Act by §962(6)(G).  The 
Town also argues that if the Board decides that these employees 
are not excluded as on-call employees, the Hearing Examiner's 
conclusion that the positions in the proposed unit shared the 
requisite community of interest to constitute an appropriate unit
 
[end of page 1]


was not supported by the evidence and should be overturned.  On 
appeal, Ann Freeman, Esq., represented the Town of Paris, and 
Teamsters Union Local 340 was represented by Mr. Ed Marzano.  The 
Board heard the parties' oral argument on September 13, 2016.  The 
Board, comprised of Chair Katharine I. Rand, Employer 
Representative Robert W. Bower, Jr., and Employee Representative 
Amie M. Parker, deliberated this matter on September 13, 2016.

	  
                            JURISDICTION

     The Town of Paris is an aggrieved party within the meaning of 
26 M.R.S.A. §968(4) and Chapter 11, §30 of the Rules and 
Procedures of the Board.  The jurisdiction of the Maine Labor 
Relations Board to hear this appeal and to render a decision 
herein lies in 26 M.R.S.A. §968(4).

   
                            DISCUSSION

     The standard of review for bargaining unit determinations is 
well established:  The Board will overturn a hearing examiner's 
rulings and determinations if they are "unlawful, unreasonable, or 
lacking in any rational factual basis."  Council 74, AFSCME and 
Teamsters Local 48, No. 84-A-04 at 10 (Apr. 25, 1984), quoting 
Teamsters Local 48 and City of Portland, No. 78-A-10 at 6 (Feb. 
20, 1979).  

     The primary issue on appeal is whether the Hearing Examiner 
erred by concluding that the "per diem" firefighters were not on-
call employees within the meaning of 26 M.R.S.A. §962(6)(G) and 
therefore not excluded from coverage under the Act.  If we 
conclude that the firefighters are on-call employees, they have no 
statutory rights under the Act and the petitioned-for unit 
determination must be dismissed.  If we conclude that the per diem 
firefighters are not on-call employees, a review of the Hearing 

[end of page 2]


Examiner's conclusion on the appropriateness of the bargaining 
unit will be necessary.
	
     The essential facts are not in dispute and can be summarized 
with the following:
 
  *  The Town's historic reliance on citizen-firefighters to 
     respond to alarms is no longer effective because many local 
     residents now work out of town during the week.

  *  Five years ago, the Town decided to use per diem employees 
     for 12-hour shifts during the normal work week.  The Town 
     currently schedules three per diem employees on 12-hour day 
     shifts during the normal workweek and two for 10-hour shifts 
     on weekends. This ensures proper coverage at the station for 
     emergencies, maintenance and testing of vehicles and 
     equipment, and other related tasks.
 
  *  There are 15 per diem firefighters. The Fire Chief is the 
     sole full-time employee in the Paris Fire Department.  Most 
     of the per diem firefighters work full- or part-time for one 
     or more other employers.

  *  The scheduling process starts with each per diem employee 
     using a scheduling program to enter his or her "offered 
     availability" of shifts for the coming month.  The Fire Chief 
     makes the schedule based on the offered shifts.  The Chief 
     has sole discretion on scheduling, but his objective is to 
     have one EMT on each shift, someone qualified to drive all 
     the vehicles, and one with at least the Firefighter I 
     qualification.

  *  The number of hours each per diem employee actually works 
     varies, as does the number of shifts each submits as "offered 
     availability". 

[end of page 3]


     Section 962, sub-§6 of the Act defines which employees of a 
public employer are covered by the Act.  There are several 
exceptions to the definition, including paragraph G, which 
excludes any employee "who is a temporary, seasonal or on-call 
employee."  In the case below, the Hearing Examiner applied a 
"reasonable expectation of continued employment" test and 
concluded that the per diem fire fighters were not on-call 
employees.  The Hearing Examiner considered this test to be 
appropriate because it is used to determine whether an employee 
alleged to be a temporary or seasonal employee is properly 
excluded from the Act.  The Hearing Examiner also noted that the 
test provided an overarching approach to the three exclusions in 
paragraph G.  Report at 8.

     The Town's primary argument on appeal is that the Hearing 
Examiner erred as a matter of law by applying this "reasonable 
expectation of continued employment standard" in this case.  The 
Town asserts that the correct legal standard is whether the per 
diem firefighters are employed on a "sporadic and intermittent" 
basis.  The Town argues that had this "correct" legal standard 
been applied, the facts demonstrate that the per diem firefighters 
must be excluded due to their status as on-call employees.[fn]1  
 
     The "reasonable expectation of continued employment" standard  
has been used by this Board in deciding whether an employee is a 
"temporary" or "seasonal" employee who must be excluded from the 
definition of employee, exceptions also under §962(6)(G).  See 
Council 93, AFSCME v. Town of Sanford, No. 90-07 at 14 (June 15, 
1990) and AFSCME Council 93 and State of Maine, No. 89-UC-07 at 39 
(Aug. 10, 1990) aff'd State of Maine v. AFSCME Council 93, No. 91-

[fn]1  The Town also asserts that the Hearing Examiner erred in concluding 
that the employees shared the requisite community of interest to 
constitute an appropriate unit, which we will address later.

[end of page 4]


UCA-02 (Feb. 12, 1991).[fn]2  However, this "reasonable expectation of 
continued employment" standard has never been used by the Board or 
by any hearing examiner to determine whether an individual is an 
"on-call" employee under §962(6)(G). The Town contends that it was 
not appropriate for the Hearing Examiner to apply this standard. 
We agree. 

     The "expectation of continued employment" standard is not 
appropriate for determining "on-call" status because it is 
inconsistent with the plain meaning of the terms of the statute.  
Saying that someone is an "on-call" employee is generally 
understood to mean that the person works only when called by the 
employer to fill a particular need that could not reasonably have 
been anticipated.  In broad terms, it is understood as being 
available for work upon short notice.[fn]3  While the "reasonable 
expectation of continued employment" is appropriate in determining 
if an employee is truly a temporary employee, it confuses the 
issue of on-call status.
  
     The Town argues on appeal that the Hearing Examiner should 
have applied what the Town describes as an "established test" for 
evaluating the on-call exclusion.  The Town cites Teamsters Union 
Local 340 and City of Westbrook for the proposition that employees 
who work "irregularly or sporadically" are on-call employees.  

[fn]2  Although the use of the "reasonable expectation of continued 
employment" standard was not appealed, this case was affirmed on appeal.  
The Law Court held that given the use of the word "or" between the 
subsections, the six-month requirement and temporary status exclusion in 
SELRA are separate exclusions that must be applied independently. Bureau 
of Employee Relations v. M.L.R.B, 611 A.2d 59 (Me. 1992).

[fn]3  There is another form of on-call that refers to regular employees 
already on the payroll being "on-call" to respond to emergencies.  These 
employees, such as physicians being on-call on weekends or technicians 
being on-call in case of a disruption in services, are usually required 
to be near a phone and able to respond promptly when summoned.

[end of page 5]


Brief at 2-3, citing No. 13-UD-01 (Jan. 30, 2013).[fn]4  In Westbrook, 
the Hearing Examiner stated, "[m]ore than half of the per diems 
are regularly scheduled, and as many work, on average, more than 
20 hours per week.  Such work simply cannot be classified as 
'irregular' or 'sporadic.'"  No. 13-UD-01 at 12, citing AFSCME and 
County of Knox ("Knox County"), No. 82-UD-17 at 5 (Jan. 18, 1982) 
(Jail matrons, who worked sporadically and irregularly, are on-
call employees) and Town of Berwick and Teamsters Local Union No. 
48, No. 80-A-05 at 3 (July 24, 1980)(Officers who worked on a 
regularly-scheduled basis were not on-call employees).  While we 
recognize that "sporadic and irregular" and "regular scheduled" 
are terms that have been used in various cases, we do not agree 
that Westbrook reflects the use of an "established test" on this 
issue.[fn]5

     After thoroughly reviewing this Board's case law on the on-
call exclusion, it is apparent that we have never established a 
clear standard for determining on-call status.  In fact, the 
Board's case law has not been a model of clarity on this issue.  
The on-call exclusion has been addressed by a hearing examiner 
five times in the past 45 years and only appealed to the Board on 
three occasions.  In Berwick, the first case addressing on-call 
status, the Hearing Examiner adopted the community-of-interest 

[fn]4  The Town also cites AFSCME Council 93 and Penobscot County, No. 12-UC-
03 (Aug. 20, 2013), claiming it applied the Board's "established test" 
for on-call status.  The quoted section of the Penobscot Hearing 
Examiner's decision (inaccurately attributed to the Board) is not part of 
any sort of on-call determination or community-of-interest analysis.  The 
statement was made in the context of determining whether the use of the 
part-time employees had changed sufficiently to justify a unit 
clarification petition.  The Hearing Examiner concluded it had not and 
that was the conclusion affirmed by the Board in AFSCME v. Penobscot 
County, No. 14-UCA-01 at 8 (Dec. 17, 2013).

[fn]5  It is important to note that a hearing examiner's report does not have 
the same "precedential value" as a Board decision.  See Maine Maritime 
Academy v. MSEA, No. O3-UCA-01 at 3 (May 15, 2003).  

[end of page 6]


approach used by the National Labor Relations Board with respect 
to temporary or seasonal employees.  Teamsters Local Union No. 48 
and Berwick, No. 80-UD-25 at 3 (April 25, 1980), aff'd Town of 
Berwick and Teamsters Local Union No. 48, No. 80-A-05 at 3 (July 
24, 1980).  Relying on the NLRB's approach was improper  because 
there is no statutory exclusion for temporary or seasonal 
employees under the federal act, like there is in Maine's Act.  

     The NLRB cases cited by the Berwick Hearing Examiner were 
decisions that excluded temporary and seasonal employees from a 
bargaining unit based on their lack of a community of interest 
with the regular employees in the unit.  No. 80-UD-25 at 3.  
Whether a position should be excluded from a bargaining unit is a 
significantly different question than whether a certain class of 
employees is covered by the Act in the first place.  It is clear 
to us now that the use of the community-of-interest analysis to 
define a statutory exclusion is inappropriate and has contributed 
to the confusion on this issue.[fn]6  Thus, to the extent that Town of 
Berwick and Teamsters Local 48, No. 80-A-05, affirming No. 80-UD-
25 (July 24, 1980), states that the community-of-interest analysis 
controls the determination whether an employee is a temporary, 
seasonal, or on-call employee, that decision is overruled.[fn]7

[fn]6  City of Saco and Teamsters, No. 83-A-08 at 3 (July 18, 1983), and In Re 
Petition for Decertification, Winthrop Bus Drivers, No. 01-E-02 at 5 
(June 5, 2001), and the decisions cited in this discussion all refer to 
the statement in Berwick that the purpose of §962(6)(G) was to exclude 
employees who do not have a community of interest with regular employees.  
The community-of-interest analysis, however, was rarely applied and was 
never the sole basis of the decision.

[fn]7  The "temporary" and "seasonal" exclusions also contained in §962(6)(G) 
have been specifically addressed without reference to Berwick in several 
cases over the years. See, e.g., City of Bangor v. AFSCME and MLRB, 449 A.2d 
1129 (Me. 1982)( Bureau of Employee Relations v. Maine Labor Relations 
Board, 611 A.2d 59 (Me. 1992).

[end of page 7]   


     The absence of a clear standard led this Board and our 
hearing examiners to rely on certain phrases to describe the on-
call status, or, more frequently, to describe what is not on-call.  
There has been the reference to "sporadic and irregular" work, 
used in Knox County to describe the work of the matrons, No. 82-
UD-17 at 5, and in Town of Lebanon to describe the "irregular" 
work of reserve officers, Teamsters Union Local 48 and Town of 
Lebanon, No. 86-UD-02 at 13, 14 (Oct. 17, 1985), aff'd No. 86-A-01 
at 3 (Dec. 5, 1985)("regularly-scheduled part-time employees do 
not work intermittently or sporadically"), aff'd Inhabitants of 
the Town of Lebanon v. MLRB and Teamsters Union Local 48,
CV-85-656 at 3 (Feb. 3, 1987).  See also, AFSCME Council 93 and State of 
Maine, No. 89-UC-07 at 47 (Aug. 10, 1990)("Her service certainly 
was not sporadic or irregular in nature ... as the Board has 
described truly on-call employees.").  Similarly, there have been 
several statements that "regularly-scheduled" employees are not 
on-call employees.  See Berwick, No. 80-A-05 at 2 (Reserve 
officers not on-call employees because they worked "year-round on 
regularly scheduled shifts") and Westbrook, No. 13-UD-01 at 12 
(More than half of the per diem employees are "regularly 
scheduled").  In the present case, the Town of Paris relies on one 
of those labels, "sporadic and irregular," to support its case.  

     Applying the plain meaning of the words "on-call employee" in 
§962(6)(G), the standard must be whether, given all of the 
relevant circumstances, the employee works only when called by the 
employer to fill a particular need that could not reasonably have 
been anticipated.  We note that had we applied this approach in 
each of the Board's earlier on-call cases, we are confident that 
the outcome would have been the same.  In fact, reviewing these 
cases in light of this new approach to understanding the on-call 

[end of page 8]


exclusion helps to illustrate the kinds of circumstances that are 
relevant to the assessment. 

     For example, in Westbrook, the Hearing Examiner concluded 
that the per diem employees were not on-call employees of the 
Westbrook fire department because they were scheduled in advance, 
the employment of per diem employees was a regular and necessary 
component of running the city's fire department, and they were not 
hired to fill a need that arose by some circumstance beyond the 
control of the employer.  Westbrook, No. 13-UD-01 at 5, 11.  These 
factors are all relevant considerations in determining on-call 
status.  Similarly, the "reserve" officers in Berwick were 
scheduled on a monthly basis with ample notice and the Hearing 
Examiner and the Board concluded they were not on-call.  Berwick, 
No. 80-UD-25 at 2, aff'd No. 80-A-05 at 2.

     In contrast, the matrons held to be on-call in Knox County 
and the reserve patrolmen in Town of Lebanon were both called in 
at the time the need arose--for the matrons, when a female was 
arrested; for the patrolmen, immediately before the start of a 
shift when a regular employee called in sick.  Knox County, No. 
82-UD-17 at 5, Town of Lebanon, No. 86-UD-02 at 6, 13, aff'd No. 
86-A-01 at 4; aff'd Inhabitants of Lebanon v. MLRB and Teamsters, 
CV-85-656 at 3.  In both cases, it would not have been possible 
for the employer to schedule the employees in advance:  the need 
had not yet arisen.  Thus, hearing examiners, this Board, and the 
Superior Court have recognized that evidence of whether the 
employees can be scheduled in advance and how and when the need 
for them arises are important factors in the on-call 
determination.  In contrast, when a need arises because of an 
event essentially beyond the control of the employer (such as a 

[end of page 9]


snow storm or a mechanical failure), scheduling employees in 
advance generally is not an option. 

     When employees are scheduled in advance, it is generally to 
fulfill a need that can be anticipated.  Thus, employees who are 
regularly scheduled in advance are not "on call," irrespective of 
the regularity or consistency of an individual employee's work 
schedule.  In Berwick, reserve officers were scheduled to provide 
an extra officer on weekend shifts, when there was, predictably, a 
greater need.  No. 80-UD-25 at 2 (holding employees were not on-
call).  In Westbrook, the department used two or three per diems 
employees on a daily basis to supplement the full-time staff, 
similarly indicating a dependence on them.  No. 13-UD-01 at 11 
(same).  There was variation in the consistency or regularity of 
the individual work schedules of Westbrook's per diem firefighters 
("more than half" being regularly scheduled), but the need for 
them was constant. Id. at 11, 12.
  
     We conclude that the Paris firefighters are not on-call 
employees excluded from coverage under that Act because their 
employment does not meet this test.  Here, the Paris Fire Chief 
schedules three per diem employees to cover the 12-hour day shifts 
during the work week and two per diem employees for 10-hour shifts 
on the weekends.  Report at 10.  The available work was based on a 
regular need for staff to enable the fire department to function:  
the Paris fire department is entirely dependent on per diem 
employees to cover the day shifts during the work week because 
there were simply not enough call company members available to 
respond to alarms.  Report at 11.  The need for the per diem 
employees is a regular and predictable need, as demonstrated by 
the Chief's ability to schedule well in advance.  All of these 

[end of page 10]


facts together indicate that the Paris per diem firefighters are 
not on-call employees within the plain meaning of §962(6)(G).
  
     The Town argues that the Hearing Examiner misapplied or 
misconstrued several facts in his analysis of the on-call issue.  
The factual conclusions that the Town objects to are not relevant 
to our analysis.  For example, the fact that both per diem 
firefighters and call company members wear pagers and may respond 
to alarms is not relevant, nor is the fact that the per diem 
employees have other jobs.  Similarly, the fact that the Fire 
Chief has complete discretion in scheduling and considers 
employees' certifications in that process does not alter our 
conclusion that the per diem employees are not on-call employees.  

     Having concluded that the per diem firefighters are employees 
under the Act and entitled to be in a bargaining unit, we must 
consider the Town's objection to the Hearing Examiner's conclusion 
that the proposed unit is an appropriate unit.  The Town asserts 
that the Hearing Examiner incorrectly concluded that the Paris 
Fire Department employees in the petitioned-for bargaining unit 
shared a community of interest.  The Town's argument is without 
merit.  We agree with the Hearing Examiner that the per diem 
firefighters share a clear and identifiable community of interest 
and that it is an appropriate unit. 


                              ORDER
  
     On the basis of the foregoing discussion and pursuant to the 
powers granted to the Maine Labor Relations Board by the 
provisions of 26 M.R.S.A. §968(4), it is ORDERED:
 
     that the appeal of the Town of Paris, filed with respect 
     to the Unit Determination Report in Case No. 16-UD-06,

[end of page 11]


     is denied and the report is affirmed as set forth above.
 

Dated at Augusta, Maine, this 17th day of October, 2016.



				   MAINE LABOR RELATIONS BOARD						
                                                           

 

 

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