AFSCME, Council 74 and City of Bangor, No. 79-A-02, affirming in part and modifying in part No. 79-UC-05. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 79-A-02 [Issued: October 17, 1979] _______________________________ ) AMERICAN FEDERATION OF STATE, ) COUNTY AND MUNICIPAL EMPLOYEES,) COUNCIL NO. 74, ) ) Petitioner-Appellant,) ) APPELLATE REVIEW OF and ) UNIT CLARIFICATION REPORT ) CITY OF BANGOR, ) ) Respondent. ) _______________________________) American Federation of State, County and Municipal Employees, Council 74 (hereafter "AFSCME") appeals pursuant to 26 M.R.S.A. 968(4) from a decision of a hearing examiner of the Maine Labor Relations Board (hereafter "Board") dated March 6, 1979, which decision denied AFSCME'S petition for unit clarifi- cation. By agreement of the parties, the matter was submitted to the Board on briefs and without an evidentiary hearing. AFSCME was represented by H. Ross Ferrell, and the City of Bangor by Malcolm E. Morrell, Jr., Esq. FINDINGS OF FACT Under the Board decision in Teamsters Local 48 and City of Portland, Report of Appellate Review of Unit Determination Hearing (Feb. 20, 1979) [78-A-10], the standard of review is "whether the hearing examiner's rulings and determinations are unlaw- ful, unreasonable, or lacking in any rational factual basis." Id. at 6. After reviewing the unit clarification report and the documents in the record, we adopt the findings of fact listed in the report as havinq a reasonable factual basis. They are listed below: 1. On October 27, 1978 AFSCME filed a Petition for Unit Clari- fication with the Board, seeking to include "Temporary" and "Seasonal" employees in the Operations and Maintenance Division of the City's Department of Public Services in an existing bargaininq unit composed of the non-supervisory positions in the Operations and Maintenance Division of the Department of Public Safety. 2. Paragraph No. 5 of AFSCME's Petition for Unit Clarification states in part that: "The Employer claims that many employees called "temporary employees" are to be excluded from the current bargaining unit, however the posi- tions of these employees are ongoing. Many of these employees work for more than six months. These employees perform the same functions as Laborers, a job classification in the unit." [-1-] __________________________________________________________________________________ In response to a question in Paragraph No. 5 of the Petition as to whether circumstances surrounding foundation of the existing unit have changed sufficiently to warrant modification of the unit, AFSCME states "no." 3. AFSCME is the recognized bargaining agent for the unit of em- ployees holding non-supervisory job classifications in the Operations and Maintenance Division of the City's Department of Public Safety. 4. The bargaining unit of employees holding non-supervisory job classi- fications In the Operations and Maintenance Division was formed in the 1940's or 1950's. 5. It is not clear when the City first commenced hiring "Temporary" or "Seasonal" employees for employment in the Operations and Maintenance Division of the Department of Public Safety, although employees with these job classifications have been employed in the Operations and Maintenance Division at least since 1974. 6. The employees holding the "Temporary" or "Seasonal" job classifi- cations are not hired on a temporary or seasonal basis, but are instead hired throughout the year on a full-time, permanent, on- going basis. The "Temporary" and "Seasonal" employees perform the same work performed by the Laborers in the Operations and Main- tenance Division. 7. The record does not indicate that employees holding the "Temporary" or "Seasonal" classification have ever been hired on a temporary or seasonal basis, i.e., hired only to work on a particular pro- ject or to work during a particular season of the year, with the understanding that employment would be terminated when the project was completed or the season over. In addition, we make the following findings of fact based on undisputed documents In the record: 8. The exact unit description for which AFSCME is the recognized bar- gaining agent is: "the employees of the Operation and Maintenance Division of the Bangor Public Services Dept. for the purpose of establishing salaries, wages, hours and other conditions of employment, with the exception of the Operations and Maintenance Director, Asst. Operations and Maintenance Director, Highway Supervisor, Cemetery Superintendent, Yard Foremen, Sewer Supervisor, City Forester, Cost Accountants, Account Clerks, Typists, Secretaries, Stores Clerks, and such other supervisory positions as may from time to time be established by the City." 9. In 1974, the date of the oldest records available, 34 employees were hired into the "Temporary" or "Seasonal" (hereafter to- gether referred to as "Seasonal") classification. Of these only one worked in this classification for more than six months, spe- cifically, for 14 months. This employee then resigned. Only 2 of these 34 were working on January 1, 1975. 10. In l975, 20 employees were hired into this classification. Of these, none worked more than six months except one who worked for 6 months and twenty days before resigning. No "Seasonal" employee worked on January 1, 1976. 11. In 1976, 23 employees were hired into this classification. Before the end of 1976 the parties executed a collective bargaining agreement for the calendar years 1977 and 1978. (This agreement operated as a bar to unit clarification petitions until the instant petition was filed.) There was a significant change in that a num- ber of employees remained in this classification for longer than 6 months, however, starting with the employees hired in 1976. -2- __________________________________________________________________________________ Eight of the 23 carried over six months: 6 mos. + 7 days, 7, 7, 7, 12, 12, 18, and 26 months (the latter still employed in this category on the last known date). This change from the previous years, however, did not become evident until after the 1977-78 contract was signed in 1976.[fn]1 On January 1, 1977, for example, of these 8 only 3 had then exceeded 6 months, each by only 1-1/2 months, although 7 of the 8 were still working. 12. In 1977, 37 employees were hired into this classification. Of these, 3 worked more than 6 months: 6 mos. + 14 days, 9, and 19 months (the latter still employed in this cate- gory on the date of the hearing). In addition, four of the 1976 hires also worked in 1977 for lengthy periods, one throughout the year. Eleven of the 1977 hires plus one from 1976 were still working on January 1, 1978. 13. In 1978, 42 employees were hired into this classification. Of these, 2 had worked more than six months on December 4, 1978: 6 months + 4 days and 7-1/2 months. However, 16 of them were still employed in the classification at that time. In addition, one of the 1976 hires and one of the 1977 hires were also still working. Thus a total of 18 employees were still working on December 4, 1978. 14. The total number of employees in the unit dropped from the high 80's of the 1974-1976 period to 64 to 74 in the 1977-78 period. 15. The number of seasonal employees employed on the first day of each quarter for the period for which information was available was: January 1 April 1 July 1 October 1 1974 unk. 1 13 7 1975 2 2 11 2 1976 0 1 10 12 1977 7 8 12 12 1978 12 10 16 20 1979 18* *On December 4, 1978, date nearest to January 1, 1979, for which information available. DISCUSSION It is apparent from the additional findings of fact that but for one employee who was employed significantly more than 6 months in the 1974 to 1976 period, no "Seasonal" employees in this essentially wall-to-wall bargaining unit who reached public-employee status were denied or lost representational rights. After the last contract was executed in late 1976, however,the employer's use of "Seasonal" employees changed dramatically: the titles "Temporary" and "Seasonal" sometimes became factually misleading since for the first time many employees in these categories became long term. In addition, many employees __________ 1 The contract was dated 1976 without notification of the month and day of execution. -3- __________________________________________________________________________________ began working through the winter from year to year and essentially year-round. Finally, the increased use of "Seasonal" employees as long-term employees, plus the new use of these employees throughout the year coexisted with a decrease in the number of year-round "permanent" employees in the unit. The hearing examiner concluded, and Respondent does not dispute, that these employees had always been employed on a permanent basis and therefore that there had been no change in circumstances. The conclusion did not address the changed nature of use of and the longevity of the employees, however, specifically, the new practices of frequent terms beyond 6 months, of some very lengthy tenures in the position, and the employment throughout the four seasons of these employees. The conclusion that there was no change therefore is lacking a factual basis and can no longer stand. Thus, under 26 M.R.S.A. 966(3), modification of the bar- gaining unit is justified and adequately supports the limited directive we will state below.[fn]2 On the one hand it is perfectly appropriate for the City to continue the practice, dating back at least to 1974, of having employees in the job entitled "Seasonal" perform the same work as "Laborers" or others who are in the bargain- ing unit. On the other hand, we cannot permit those who exceed 6 months dura- tion, who are in fact permanent employees, and who thus are eligible for public employee status per 26 M.R.S.A. 962(6)(F), to remain outside of an otherwise wall-to-wall unit. Thus, while we affirm the decision of the hearing examiner that the titles "Seasonal" or "Temporary" should not be added to the unit description and that these employees should not be carried over en masse into the bargaining unit, we do direct that each employee in the "Temporary" or "Seasonal" classification who was hired on a permanent basis (as the hearing examiner determined) and who exceeds 6 months of employment must be considered part of the unit as a Laborer or as whatever other existing job classification is most appropriate.[fn]3 To do otherwise would contravene the duty of this Board to ensure that the purpose of the Municipal Public Employees Labor Relations Act is carried forward. 26 M.R.S.A. 961, 966. This decision, of course, is not intended to preclude the hiring of employees on a temporary or seasonal basis within the meaning of 26 M.R.S.A. 962(6)(G). CONCLUSION In summary, the unit description should remain the same. However, "Temporary" or "seasonal" employees who are in fact hired on a permanent basis must henceforth __________ 2 We do not categorize our order as modifying the composition of the bargaining unit. Rather, since the unit description itself adequately covers the situa- tion, we consider it to be an interpretation or application of the existing unit description to the present circumstances. 3 As of December 4, 1978, this would apply to only 4 of the 18 employees in the "Temporary" or "Seasonal" category. -4- __________________________________________________________________________________ be considered part of the unit when they exceed 6 months of employment as either "Laborers" or as whatever other existing job classification is most appropriate. SO ORDERED. MAINE LABOR RELATIONS BOARD /s/______________________________ Edward H. Keith Chairman /s/______________________________ Wallace J. Legge Employee Representative /s/______________________________ Don R. Ziegenbein Employer Representative Dated at Augusta, Maine this 17th day of October, 1979. -5- __________________________________________________________________________________