Brunswick Police Communications Operators' Assn. and Town of Brunswick, No. 77-A-03, affirming No. 77-UD-13. STATE OF MAINE MAINE LABOR RELATIONS BOARD [MLRB No. 77-A-03] [Issued: January 17, 1977 ____________________________________ ) THE BRUNSWICK POLICE COMMUNICATIONS ) OPERATORS' ASSOCIATION ) REPORT OF APPELLATE REVIEW ) and ) of ) THE TOWN OF BRUNSWICK ) UNIT DETERMINATION HEARING ____________________________________) This case comes to the Maine Labor Relations Board by way of an appeal pursuant to 968, 4, of the Municipal Public Employees Labor Relations Act resulting from a Unit Determination Report issued by the Executive Director's designee on December 9, 1976, involving the dispatchers and communications supervisor of the Brunswick Police Department. The case originally came before the Executive Director's designee, as hearing examiner, as the result of the filing of MLRB Form 2, "Petition for Appro- priate Unit Determination," dated November 3, 1976, and filed with the Maine Labor Relations Board on November 14, 1976. On November 30, 1976, a unit determination hearing was held in the Municipal Building Conference Room, 28 Federal Street, Brunswick, Maine, as provided in 966, Chapter 9-A, Title 26, MRSA. The job cate- gories under consideration in the Unit Determination Report of December 9, 1976, the contents of which are incorporated herein by reference, are Dispatchers and Communi- cations Supervisor. This case now comes to the Maine Labor Relations Board by way of a letter of appeal forwarded to the Board by John Bibber, Town Manager, dated December 21, 1976, and filed with this agency on December 22, 1976. This case was heard on appeal by the Maine Labor Relations Board on December 28, 1976, at the Portland Jetport Conference Room, Portland, Maine. Present for the Board at that hearing were: Donald W. Webber, Alternate Chairman; Robert D. Curley, Employer Representative; and Michael Schoonjans, Employee Representative. Present for the Appellants were: John P. Bibber Brunswick Town Manager Orville T. Ranger, Esquire Brunswick Town Attorney Greg Doyon Brunswick Administrative Assistant Richard F. Maier Chief, Brunswick Police Department Present thereat for the Brunswick Police Communications Operators' Association was: Louis H. McIntosh Spokesman, BPCOA No objections were raised with respect to the jurisdiction of the Board to hear this case and, as there were no matters of procedure to be disposed of, the Board pro- ceeded directly to the matters of substance to be raised by the parties. The position of the Town of Brunswick, as expressed through its Town Manager, was that the dispatchers and communications supervisor had a community of interest with the members of the police officers' bargaining unit and performed police related functions. Both police personnel as well as the dispatchers and communications super- visor are hired by and are responsible to the Chief of Police. The dispatching [-1-] ____________________________________________________________________________________ capabilities of the dispatchers and the communications supervisor are police oriented and these particular persons have not been trained in, nor are they familiar with, dispatching duties with respect to fire calls. Mr. Bibber stated that the dispatchers and communications supervisor are uniformed personnel but that the uniform differs from police officers. The Town of Brunswick is most anxious to have the Unit Deter- mination Report below modified in order that the dispatchers and communications supervisor be included in with the employees in the Police Department bargaining unit and to avoid multiple contract negotiations. It was the testimony of the Town Mananer that the Police Department does have a collective bargaining agreement for the persons in that bargaining unit, said agreement to expire on March 31, 1978. Mr. Bibber said it was his opinion that a separate unit would not facilitate negotiations for the pro- posed bargaining unit for dispatchers and communications supervisor since the Town of Brunswick did not receive the requisite 120 day notice until September 12, 1976. Consequently, it is his opinion that the bargaining unit, even if formulated sepa- rately, could not negotiate on matters requiring appropriation until the 1978 fiscal year which, for the Town of Brunswick, begins on January 1, 1978. Mr. McIntosh, on behalf of the Appellees, took issue with the fact that the dispatchers and communications supervisor had a community of interest with the police bargaining unit. First, the members of the police bargaining unit are required to attend the Maine Criminal Justice Academy but this requirement is not extended to dispatchers or to the communications supervisor. Second, the members of the police bargaining unit enjoy 20 year retirement while the dispatchers and communications supervisor may retire after 25 years of service regardless of age. Thirdly, he viewed the functions of the dispatchers and communications supervisor as being in- volved with informational responsibilities, not with police work. The dispatchers and communications supervisor do not receive a clothing or maintenance allowance such as is received by police officers. Moreover, the dispatchers have a separate nation- wide organization. and their own series of professional publications. Mr. Mcintosh stated it was his opinion that to include the dispatchers and communications super- visor in the same bargaining unit with police personnel would have the practical result of delaying collective bargaining for the two job categories under considera- tion herein. It is the desire of the appellees to commence negotiations immediately on non-monetary items not requiring 120 day notice under the Municipal Public Employees Labor Relations Act. Further testimony from Mr. Mcintosh indicated that some dispatchers and the com- munications supervisor have voluntarily (without benefit of additional pay) become special officers and, accordingly, have been conferred the power of arrest. It is not a contingency of employment that dispatchers be so qualified in order to be appointed to their duties as a police dispatcher. Presently the collective bargaining agreement between the Town of Brunswick and the bargaining agent for the police officers specifically excludes office personnel from the unit covered by that contract. Mr. Mcintosh testified that it has been the position of the Town of Brunswick that the dispatchers and communications supervisor are "office personnel" and, consequently, are excluded from coverage under the police collective bargaining agreement. Mr. Mcintosh also reported that the Brunswick Police Officers' Association had voted that the dispatchers might join the former association which would allow them to participate in -2- ____________________________________________________________________________________ such items as a group-rate cleaning contract and social functions but that this invi- tation was made without any assurances as to the effectiveness of the Brunswick Police Officers' Association to represent dispatchers and the communications supervisor in collective bargaining. After having reviewed the testimony at the hearing of December 28, 1976, and the Unit Determination Report of the Executive Director's designee dated December 9, 1976, we make the following findings of fact: 1. That a Petition for Appropriate Unit Determination dated November 3, 1976, was filed with the Maine Labor Relations Board on November 4, 1976, by Louis H. McIntosh, and a hearing thereon was held on November 30, 1976. 2. The job categories under consideration in that hearing and reported on in the aforesaid Unit Determination Report of December 9, 1976, consisted of Dispatchers and Communications Supervisor in the Brunswick Police Department. 3. That as of the time of the unit determination hearing con- ducted on November 30, 1976, more than 3O% of the petitioners in the foregoing job categories had been employed for more than 6 months. 4. That the Unit Determination Report in this matter was rendered on December 9, 1976. Our examination of 966, 2, of the Municipal Public Employees Labor Relations Act indicates that the hearing examiner, in conducting unit determination proceedings, is charged with insuring employees the fullest freedom in exercising the rights gua- ranteed by the Act and insuring a clear and identifiable community of interest among employees concerned. We note that this appeal involves no dispute about the eligibi- lity of the job categories in question to constitute "public employees" within the meaning of 962 of the Municipal Public Employees Labor Relations Act, nor does this appeal concern itself with any managerial exclusions which might otherwise be found under the provisions of 966, 1, of the Act. Accordingly, our sole charge in this case is to determine if the bargaining unit set out in the Unit Determination Report below is consistent with the foregoing statutory mandates. There are no disputed facts in the Unit Determination Report of December 9, 1976. When considering the community of interest alleged by the Town of Brunswick and denied by the appellee, we find that there is a significant disparity in wages, the top dispatcher wage being equivalent to the lowest police patrolman wage. The wage for the communications supervisor begins at more than $25 per week less than the rate for police patrolman and maximizes at less than $7 per week more than the minimum wage for a police patrolman. There are distinct differences in the requirements for the dispatchers and communications supervisor as compared to the police officers. Not the least of these differences is the requirement that the police officers must attend the Maine Criminal Justice Academy, while both the dispatchers and the communications supervisor do not have to meet this requirement. There are significant differences in retirement programs between the police officers and the dispatchers and communications supervisor. Moreover, the testimony shows that the fringe benefits accorded to the dispatchers and the communications supervisor are different from those accorded to police officers (e.g., the difference in clothing and maintenance allowances). These -3- ____________________________________________________________________________________ items all lead us to concur with the decision of the hearing examiner below that both the dispatchers and communications supervisor do not at this time share a sufficient community of interest with the police officers and, therefore, should be allowed to constitute a separate and distinct bargaining unit. The second matter that we must consider is that of according the fullest free- dom under the purposes set forth in the Municipal Public Employees Labor Relations Act to those persons in the job categories of Dispatchers and Communications Super- visor. Not the least among these purposes is the declared public policy of the State to provide a uniform basis for recognizing the right of public employees "to join labor organizations of their own choosing and to be represented by such organization in collective bargaining for terms and conditions of employment." [26 MRSA 961] Since we have been told that there is a contract in effect between the police officers' association and the Town of Brunswick which does not expire until March 31, 1978, and since we have learned that that contract provides that the dispatchers and communications supervisor, as "office" or "clerical" personnel, are exempted therefrom, we feel that inclusion of the job categories of Dispatchers and Communications Supervisor in the bargaining unit for police officers (and other related police job categories) would subvert the purposes of the Act with respect to the ability of the dispatchers and communications supervisor to begin collective negotiations as contemplated therein. While it may true that the 120 day notice requirement found in 965, 1, of the Act will preclude the dispatchers and com- munications supervisor from negotiating on matters requiring financial appropriation until the commencement of the 1978 fiscal year beginning on January 1, 1978, we nevertheless feel that it is a statutorily conferred right that these persons be allowed to commence collective negotiations on other matters not requiring financial appropriation much sooner. Therefore, we now direct that the appeal entered by the letter of Town Manager John P. Bibber dated December 21, 1976, be and hereby is DENIED. Dated at Augusta, Maine, this 17th day of January, 1977. MAINE LABOR RELATiONS BOARD /s/________________________________________ Donald W. Webber, Alternate Chairman /s/________________________________________ Robert D. Curley, Employer Representative /s/________________________________________ Michael Schoonjans, Employee Representative -4- ____________________________________________________________________________________