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]
COUNCIL NO. 74,                )
                               )                 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."

              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.
              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
         15.  The number of seasonal employees employed on the first day of
              each quarter for the period for which information was available

                          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.

     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.

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).

     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.

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.
                                            MAINE LABOR RELATIONS BOARD
                                            Edward H. Keith

                                            Wallace J. Legge
                                            Employee Representative

                                            Don R. Ziegenbein
                                            Employer Representative

Dated at Augusta, Maine this 17th day of October, 1979.