AFSCME, Council 74 and City of Brewer, No. 79-A-01, affirming No. 79-UC-04

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                              Case No. 79-A-01
                                                   [Issued:  October 17, 1979]

                                 )             REPORT OF APPELLATE REVIEW OF
  and                            )               UNIT CLARIFICATION HEARING
CITY OF BREWER                   )
     This case originally came to the Maine Labor Relations Board ("Board") by way
of a Petition for Unit Clarification filed October 27, 1978 by Pine Tree Council
No. 74 of the American Federation of State, County and Municipal Employees, AFL-
CIO ("AFSCME").  AFSCME sought in its Petition to include the newly created posi-
tion of Dispatcher in an existing bargaining unit composed of the Patrolmen
employed by the City of Brewer ("City") Police Department.
     On December 21, 1978 a Board hearing examiner conducted a unit clarification
hearing on the matter, pursuant to 26 M.R.S.A.  966.  As a result of this hearing,
the hearing examiner issued a Unit Clarification Report on February 15, 1979,
finding that the Dispatchers should not be included in the existing unit because
they share insufficient community of interest with the Patrolmen, and because
public interest considerations militate against such inclusion.  The hearing
examiner accordingly ordered that the Petition for Unit Clarification be denied.
     AFSCME filed pursuant to 26 M.R.S.A.  968(4) timely notice of appeal of the
Unit Clarification Report.  By letter to the Board dated April 12, 1979, the
parties agreed to waive hearing and oral argument for the reason that AFSCME's
appeal was based solely on alleged errors of law.
     All briefs on the legal issues raised by the appeal were filed by May 12,
1979.  The Board proceeded to deliberate over the appeal at a conference held in
Augusta, Maine on September 28, 1979, Chairman Edward H. Keith presiding, with
Employer Representative Don R. Ziegenbein and Employee Representative Wallace J.
     Neither party has challenged the jurisdiction of the Maine Labor Relations
Board in this matter, and we conclude the Board has jurisdiction to consider the
appeal and render a decision and order as provided in 26 M.R.S.A.  968(4).

                                 FINDINGS OF FACT
     Since neither party has disputed the findings of fact made by the hearing
examiner, we hereby adopt the findings of fact contained in the Unit Clarifica-
ion Report:


          1.  The City had a collective bargaining agreement ("Agree-
              ment") with AFSCME which expired on January 1, 1979.
              The Agreement covered a bargaining unit of patrolmen as
              described in Article I, Section 1 of the Agreement between
              the City and the Union as follows:
                "The City recognizes the Union as the sole and
                 exclusive bargaining agent for the regular,
                 full time patrolmen (which term shall be inter-
                 preted to include both male and female police
                 officers, and those full time patrolmen desig-
                 nated as corporal in accordance with Section 5
                 of Article VI) of the Brewer Police Department
                 excluding Chiefs, Captains, Lieutenants, Ser-
                 geants, Traffic Guides, Special Police, and such
                 other positions that may be established from time
                 to time by the City for the purpose of bargaining
                 with respect to wages, hours, and working condi-
                 tions."  (Joint Exhibit 1, page 1)
          2.  At one time the City had employed civilian dispatchers but
              discontinued their use prior to the certification of AFSCME
              in 1971 as bargaining agent for the patrolmen.  Patrolmen
              performed the dispatching duties at the time.  In 1977,
              the City embarked on a program of gradually placing more
              patrolmen on the street while simultaneously attempting to
              eliminate problems which had arisen between the Police and
              Fire Departments with regard to dispatching responsibilities
              by reestablishing the position of civilian dispatcher.
              There were four dispatchers employed full time at the time
              of the hearing.
          3.  These problems had been of a continuing nature in that the
              police dispatchers tended to concern themselves primarily
              with police dispatching problems while at times neglecting
              the dispatching needs of the fire department and ambulance
              service.  This festering problem came to a head in May, 1976
              when a fire in the downtown area, the most serious fire in
              5 years, was not brought to the attention of the Brewer Fire
              Department until 4 hours after other firefighters arrived at
              the scene.  Fire Chief Ronald Clark firmly believes that this
              was the result of a police orientation on the part of the
              dispatchers.  This was partly due to their intense knowledge
              of and personal involvement with police problems and a corres-
              ponding lack regarding fire problems.  Both Department Chiefs
              confirmed that this was a continuing problem.
          4.  Further problems were created when police dispatchers on
              occasions did not follow certain procedures which had been
              established by the Fire Department concerning the dispatch of
              fire equipment.  The testimony revealed that there was some
              resistance on the part of patrolmen to the idea of having to
              follow directions or procedures emanating from the Fire Depart-
              ment, particularly when they did not agree with them.
          5.  The present dispatchers do the exact job as the patrolmen used
              to do when there were no dispatchers.  It is clear from the
              job descriptions in evidence and the testimony, however, that
              the type of work the two perform now is totally different.  In
              short, the patrolmen do typical police work in all its various
              forms and the dispatchers do no such work.
          6.  The supervision of the two positions vary.  In part because the
              dispatchers deal with police problems about 90% of the time,
              the dispatchers take direction primarily from the Police Command
              duty officer.  The Police Chief and Administrative Lieutenant are
              responsible for payroll, time cards, vacation scheduling, and
              other personnel matters.  The dispatchers were funded through


              the Police Department Budget in 1977 and 1978 although it is
              proposed in the 1979 budget that they be included in the Public
              Safety Building Budget.  With regard to job performance, instruc-
              tion, discipline, training, hiring and firing, however, the
              Police and Fire Departments exercise joint authority.
          7.  The dispatchers wear a blue uniform which at one time was worn
              by policemen; it displays both fire and police insignias on the
          8.  There are some differences in pay scale, fringe benefits and method
              of determining earnings between the two positions.  Most significant
              is the opportunity for policemen to retire at 50% pay after 25
              years regardless of age while the Dispatchers are covered by the
              Maine Retirement System which requires at a minimum the attainment
              of the age of 65.  The dispatchers are paid in accordance with the
              City pay plan.  Patrolmen are paid in accordance with the Agreement.
          9.  The qualifications, skills, and training for the two positions are
              established in the written job descriptions.  They are similar but
              for the fact that patrolmen must complete police school and dis-
              patchers must complete the dispatch school each provided by the
              Maine Criminal Justice Academy.  There is no line of progression
              between the two jobs.
         10.  The dispatcher remains stationary at the communication center for
              his entire shift.  This center is located in the police side of the
              Public Safety Building.  The duties of the patrolmen in active
              crime prevention, patrol, investigation, law enforcement, court
              appearances, etc., keep the patrolmen predominantly out of the
              Public Safety Building and they do not come into the building un-
              less they have a special reason.  If the City had the necessary funds,
              it would locate dispatchers in a "neutral" geographic location.
              Of course a portion of the time of both classifications involves com-
              municating with the other.  There are some scheduling differences,
              for example, dispatchers do not work a "short swing," that is, an
              occasion of only 8 hours off between two 8-hour shifts.
         11.  There is evidence of neither the desires of the dispatchers nor
              the extent of union organization.
     The standard by which we review a unit report rendered pursuant to 26 M.R.S.A.
 966 is whether the hearing examiner's rulings and determinations "are unlawful,
unreasonable, or lacking in any rational factual basis."  Teamsters Local 48 and
City of Portland, Report of Appellate Review of Unit Determination Hearing at 6
(Feb. 20, 1979).  After carefully considering the arguments raised in the parties'
briefs, we conclude that the Unit Clarification Report is free of error under this
     The hearing examiner's determination that there exists insufficient community
of interest between the Dispatcher and Patrolmen positions is not erroneous.  This
determination involved a judgmental assessment by the hearing examiner of a number
of relevant criteria.  Among these relevant criteria are such factors as (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 earn-
ings; (4) similarity in employment benefits, hours of work and other terms and con-
ditions of employment; (5) similarity in the qualifications, skills and training of


employees; (6) frequency of contact or interchange amonq the employees; (7) geo-
graphic proximity; (8) history of collective bargaining; (9) desires of the affected
employees; (10) extent of union organization; and (11) the public employer's
organizational structure.  See, e.g., Maine Teachers Association and City of Portland,
Unit Determination Report at 3-4 (Oct. 20, 1978) [No. 78-UD-40 & 79-UD-02].
     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 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.
     In light of these considerations, the hearing examiner's determination that the
differences in job duties, qualifications, training, job location, and retirement
benefits negated the required community of interest plainly is correct.  While there
are some minor similarities between the Dispatcher and Patrolmen positions, these
similarities clearly are outweighed by these differences.
     The fact that the Dispatchers perform duties formerly performed by the Patrol-
men does not ipso facto establish that the Dispatchers must be part of the existing
unit.  As discussed above, whether the Dispatchers should be included in the Patrol-
men's unit depends on the assessment of the degree of community of interest between
the two positions.  This assessment is made on a case-by-case basis, in which no one
factor necessarily is conclusive.  Because all relevant criteria must be considered,
the Dispatchers are not "automatically" part of the existing unit merely because
they perform work formerly performed by unit members.
     The hearing examiner also committed no error by finding that public interest
considerations dictate that the Dispatchers not be included in the Patrolmen's unit.
The policy consideration on which the hearing examiner relied was the history of
neglect by dispatchers of the dispatching needs of the City's Fire Department and
ambulance service.  Inclusion of the Dispatchers in the Patrolmen's unit, the hear-
ing examiner concluded, could serve to continue the serious problems caused by this
neglect.  The hearing examiner accordingly ruled that public interest considerations
made inclusion of the Dispatchers in the unit inappropriate.
     This ruling was entirely proper and reasonable.  While public policy considera-
tions may not be conclusive, they are always pertinent in a hearing examiner's deter-
mination of a bargaining unit dispute.  Indeed, a failure to consider any important
public interest considerations could result in an unreasonable ruling, which would
be subject to Board modification or reversal.  We also note that even if the hearing
examiner had erred in his public interest finding, we could not reverse the hearing
examiner's order in light of his correct, independent finding on the community of
interest point.
     We also cannot agree with AFSCME's argument that the integrity of the existing
unit and the employees' rights to bargain are threatened by the hearing examiner's

rulings.  The Patrolmen's unit remains unaffected by the rulings.  The composition
of the unit has not been altered, and unit membors will continue to enjoy all bar-
gaining rights and protections provided by the law.  The rulings also have no effect
on the Dispatchers' rights to organize and bargain collectively, if they choose to
do so.  The proper procedure for the Dispatchers to follow is to file a petition for
unit determination pursuant to 26 M.R.S.A.  966, and a petition for election pursuant
to 26 M.R.S.A.  967(2).  Once a bargaining agent for the Dispatchers has been recog-
nized or certified, the Dispatchers may bargain fully over all their terms and condi-
tions of employment.  In light of these circumstances, we fail to see how any employ-
ee's bargaining rights are threatened by the Unit Clarification Report.
     One contention by the City deserves coninent.  This is the argument that the
hearing examiner should have denied the Petition under Rule 1.13(A) of the Board's
Rules and Procedures without reaching the merits.  This argument overlooks the fact that
application of Rule 1.13(A), which sets forth the instances when unit clarification
petitions may be denied, is within the discretion of the hearing examiner.  Particular-
ly where, as here, the employer creates a new position to perform work formerly per-
formed by unit members is the hearing examiner warranted in proceeding to a complete
and thorough consideration of the merits of the petition.  The hearing examiner com-
mitted no error by failing to evoke Rule 1.13(A) to deny the Petition.
     Having found that the Unit Clarification Report contains no error, we must affirm
the Report and deny AFSCME's appeal.

     On the basis of the foregoing findings of fact and decision and by virtue of
and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
 968(4), it is ORDERED:
          That the February 15, 1979 Unit Clarification Report is
          AFFIRMED in all respects.  AFSCME's appeal of the Unit
          Clarification Report is DENIED.
Dated at Augusta, Maine this 17th day of October, 1979.
                                         MAINE LABOR RELATIONS BOARD
                                         Edward H. Keith
                                         Don R. Ziegenbein
                                         Employer Representative

                                         Wallace J. Legge 
                                         Employee Representatve