AFSCME, Council 74 and City of Bangor, No. 79-UC-05, affirmed in part and modified in part by 79-A-02. [STATE OF MAINE] [MAINE LABOR RELATIONS BOARD] [Case No. 79-UC-05] [Issued: March 6, 1979] ________________________________ ) AMERICAN FEDERATION OF STATE, ) COUNTY AND MUNICIPAL EMPLOYEES, ) COUNCIL NO. 74 ) ) and ) UNIT CLARIFICATION REPORT ) CITY OF BANGOR ) ________________________________) As the result of the filing of a Petition for Unit Clarification on October 27, 1978 by H. Ross Ferrell, Jr., Field Representative for the American Federation of State, County and Municipal Employees, Council No. 74 ("AFSCME"), a unit clari- fication hearing was conducted on January 18, 1979 in Bangor, Maine, as provided in 26 M.R.S.A. 966. Present at the hearing for the petitioner was: H. Ross Ferrell, Jr. Field Representative, AFSCME Present for the City of Bangor ("City") were: Malcolm E. Morrell, Jr., Esq. Attorney for the City John R. Perry Witness and Personnel Director for the City Also present was the undersigned, Attorney/Examiner for the Maine Labor Rela- tions Board ("Board") in his capacity as hearing examiner, so desiqnated by the Executive Director of the Board pursuant to 26 M.R.S.A. 966. By its Petition, AFSCME seeks to include Operations and Maintenance Division employees in the City's Department of Public Services holding the job classifica- tions of "Seasonal" or "Temporary" in an existing bargaining unit composed of the Custodial Worker, Laborer, Maintenance Worker and other non-supervisory positions in the Operations and Maintenance Division of the Department of Public Services. At the commencement of the January 18, 1979 hearing, counsel for the City submitted a Motion to Dismiss AFSCME's Petition for Unit Clarification, on the ground that the Board lacks jurisdiction to entertain the Petition because the Petition does not allege, as required by 26 M.R.S.A. 966(3), that circumstances surrounding the for- mation of the existing unit have changed sufficiently to warrant modification of the unit. Upon receipt of the Motion to Dismiss, the hearing examiner ruled that he would reserve judgment on the Motion until such time as he had the opportunity to consider the points raised in the Motion, and the parties had the opportunity to file written arguments concerning the Motion. The hearing accordingly proceeded on the merits of the Petition for Unit Clarification. At the close of the hearing, the parties agreed to file briefs arguing the merits of the Motion to Dismiss, after which, if the hearing examiner decided that the Petition should not be dismissed, the parties would file briefs arguing the merits of the Petition for Unit Clarification. The briefs arguing the Motion to Dismiss were filed by February 27, 1979. [-1-] _____________________________________________________________________________________ FINDINGS OF FACT Upon review of the Petition for Unit Clarification and the testimony and documentary evidence introduced at the January 18, 1979 unit clarification hear- ing, the hearing examiner finds that: 1. On October 27, 1978 AFSCME filed a Petition for Unit Clarification 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 bargaining unit com- posed of the non-supervisory positions in the Operations and Main- tenance 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 positions 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 employees 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 hirinq "Temporary" or "Seasonal" employees for employment in the Operations and Main- tenance 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 classifica- tions are not hired on a temporary or seasonal basis, but are in- stead hired throughout the year on a full-time, permanent, ongoing basis. The "Temporary" and "Seasonal" employees perform the same work performed by the Laborers in the Operations and Maintenance 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 project or to work during a particular season of the year, with the understand- ing that employment would be terminated when the project was com- pleted or the season over. -2- ____________________________________________________________________________________ DISCUSSION I The City argues in its Motion to Dismiss that the Petition for Unit Clari- fication must be dismissed because the Board lacks jurisdiction to entertain the Petition since the Petition does not allege a change in circumstances surround- ing formation of the existing bargaining unit, as required by 26 M.R.S.A. 966(3). AFSCME contends in its brief that it has sufficiently alleged a change in circum- stances surrounding the formation of the existing unit - i.e., that employees for- merly hired on a temporary or seasonal basis when there was a lack of personnel among bargaining unit employees are now hired on a permanent, ongoing basis to perform bargaining unit work. After carefully considering the evidence presented at the January 18, 1979 unit clarification hearing, the applicable provisions of the Municipal Public Employees Labor Relations Act ("Act") and the arguments raised by the parties, the hearing examiner is of the opinion, for the reasons discussed below, that the Petition sufficiently alleges a change in circumstances surrounding formation of the existing bargaining unit, thereby conferring jurisdiction upon the Board to entertain the Petition. The City's Motion to Dismiss accordingly must be denied. The hearing examiner also finds, however, that AFSCME has failed to show that the alleged change in circumstances has in fact occurred. Because a change in circum- stances surrounding the formation of the existing bargaining unit sufficient to warrant modification in the composition of the unit is a threshold issue which must be proved before a Petition for Unit Clarification can be granted, the hearing examiner must dismiss AFSCME's Petition. II The hearing examiner cannot agree with the City's argument that the Petition for Unit Clarification fails to allege a change in circumstances surrounding for- mation of the existing unit sufficient to warrant modification in the composition of the unit.[fn]1 Paragraph No. 5 of the Petition alleges in part that "The Employer claims that many employees called temporary employees are to be excluded from the current bargaining unit, however the positions 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 The City also argues in its brief that the Petition must be dismissed because there is a "question concerning representation" within the meaning of 26 M.R.S.A. 966(3). This argument has no merit. The City has not challenged the fact that AFSCME is the recognized bargaining agent for Operations and Maintenance Division employees holding non-supervisory classifications in the Public Safety Department. An accretion of job classifications to an existing unit without an election usually is appropriate under the unit clarification process. See, e.g., A.F.S.C.M.E., AFL-CIO, Pine Tree Council No. 74 and City of Brewer, Unit Clari- fication Report (Feb. 15, 1979) [79-UC-04]. -3- ____________________________________________________________________________________ The hearing examiner believes that these allegations are susceptible to several reasonable interpretations. For example, the allegations could be reasonably construed to mean that the City recently classified a number of employees as "Temporary" employees and took the position that these employees were excluded from the unit, or, as argued by AFSCME in its brief, that employees formerly hired on a temporary basis are now permanently performing unit work. Either construction of the allegations in Paragraph No. 5, if proved, could constitute a change in circumstances sufficient to warrant modification of the composition of the existing unit. The fact that AFSCME stated "no" in its Petition in response to the question contained in Paragraph No. 5 asking whether the circumstances surrounding forma- tion of the unit have changed sufficiently does not ipso facto mean that the Peti- tion fails to allege a sufficient change. As discussed above, the allegations contained in Paragraph No. 5 of the Petition do sufficiently allege the required change in circumstances. In addition, a technical deficiency in a Petition may be cured either by verbal amendment at the commencement of the unit clarification hearing or by the re-filing of a corrected Petition. AFSCME's representative stated at the commencement of the January 18, 1979 hearing that he wished to amend the Petition by substituting the word "yes" for the word "no" in Paragraph No. 5. The hearing examiner stated that such an amendment was proper and would be permitted. The technical deficiency in the Petition accordingly was cured, and offers no basis for ruling that the Petition fails to allege a change in cir- cumstances surrounding the formation of the bargaining unit. For the foregoing reasons, the hearing examiner concludes that the Petition for Unit Clarification sufficiently alleges a change in circumstances surround- ing formation of the existing bargaining unit, as required by 26 M.R.S.A. 966(3). The Board consequently has jurisdiction to entertain the Petition, and the City's Motion to Dismiss must be denied. III In addition to alleging in the petition that a change in circumstances sur- rounding formation of the existing bargaining unit has occurred, a petitioner for a unit clarification must also show at the unit clarification hearing that the alleged change in circumstances has in fact occurred. The question whether cir- cumstances surrounding the formation of an existing bargaining unit have changed sufficiently is a threshold issue which must be proved if the petitioner is to prevail. See, e.g., City of Lewiston and Hot Lunch Workers' Unit, Local 2011, Council 74, AFSCME, Unit Clarification Report (Dec. 19, 1978) [79-UC-03]. Thus, the City argues in its initial brief that even if the Petition does contain sufficient allegations that a change in circumstances has occurred, AFSCME has failed to sustain its burden of presenting evidence of this change. The hearing examiner must agree that the evidence offered at the unit clari- fication hearing does not show that the circumstances surrounding the formation -4- ____________________________________________________________________________________ of the existing bargaining unit have changed sufficiently to warrant modifica- tion in the composition of the unit. AFSCME argues in its brief that the change in circumstances which has occurred is that employees holding the "Temporary" or "Seasonal" job classification formerly were employed to perform bargaining unit work on a temporary or seasonal basis, but now are employed on a permanent, ongoing basis. To prove this change, AFSCME must show (1) that "Temporary" or "Seasonal" employees were at the time of the formation of the unit, or at a time subsequent to creation of the job classifications, employed on a temporary or seasonal basis, and (2) that employees holding the "Temporary" or "Seasonal" classifications now are employed on a permanent, ongoing basis. While the evidence offered at the unit clarification hearing does show that the "Temporary" or "Seasonal" employees now are employed to perform bargaining unit work on a permanent, ongoing basis, the record does not show that these employees have ever been employed on a tem- porary or seasonal basis, i.e., for the purpose of working on a particular con- struction project, or mowing the grass in parks and cemetaries, or plowing snow, with the understanding that the employee's employment would be terminated when the project was completed or the season of the year over. In the absence of such a showing, the hearing examiner cannot find that there has been a "change" in cir- cumstances sufficient to warrant modification of the unit. Testimony by Witness Perry, the City's Personnel Director, establishes that the City has employed "Temporary" or "Seasonal" employees to perform bargaining unit work on a permanent, ongoing basis for at least the past 5 years. Mr. Perry testified that the City does not layoff "Temporary" or "Seasonal" employees when a particular project is completed or at the end of a particular season of the year; that the employees work a regular 40-hour week performing the same work performed by Laborers in the Operations and Maintenance Division; and that the employees are hired at any time during the year, on an ongoing basis. Union's Exhibit No. 1, composed of lists of the names of "Temporary" or "Seasonal" em- ployees hired each year since 1974, also shows that the employees' employment as "Temporary" or "Seasonal" employees has not been terminated on a temporary or seasonal basis but has instead been terminated due to promotion, resignation, or discharge for cause. There is no indication in the record, however, that "Temporary" or "Seasonal" employees have ever been employed on a temporary or seasonal basis. The Operations and Maintenance Division bargaining unit was formed sometime in the 1940's or 1950's. It is not clear whether the "Temporary" or "Seasonal" job classifications were in existence at the time of formation of the unit, or whether these classifi- cations were created subsequent to formation of the unit. It is clear, as previous- ly noted, that these classifications have been in existence since 1974, and that since 1974 employees holding the classifications have been employed on a permanent, ongoing basis. It is of course entirely possible, and the record does not indicate otherwise, that "Temporary" or "Seasonal" employees have since the creation of the classifications always been employed to perform bargaining unit work on a permanent basis. -5- ____________________________________________________________________________________ AFSCME does not point to any evidence offered at the unit clarification hearing which indicates that the "Temporary" or "Seasonal" employees have been employed on a temporary or seasonal basis, but does argue in its brief that employees holding these classifications must have been employed on a temporary or seasonal basis at one time since the City designated the employees' positions as "Temporary" or "Seasonal."[fn]2 The hearing examiner cannot accept this inference as a basis for finding that "Temporary" or "Seasonal" employees once were employed on a temporary or seasonal basis. Job titles have very little relevance in es- tablishing the nature of an employee's employment, or the nature of the duties performed by an employee. As previously stated, 26 M.R.S.A. 966(3) requires proof of a change in circumstances sufficient to warrant modification of the existing unit. Such a change cannot be inferred simply on the basis of a job title, in the absence of any evidence indicating that "Temporary" or "Seasonal" employees were in fact formerly employed on a temporary or seasonal basis. The legislative requirement in Section 966(3) of the Act that a change in circumstances be shown is soundly based on an important policy consideration. Once a bargaining unit is established, the Board has neither the resources nor the staff to engage in endless rounds of unit clarifications whenever a party becomes dissatisfied with the composition of an existing unit. Consequently, the Legislature has placed bargaining agents and public employers on notice that modification of existing units is appropriate only when, among other things, a clear, unequivocal change in circumstances surrounding formation of the unit can be shown. There also are other rules which a petitioner for unit clarification must satisfy; for example, there must be no question concerning representation, see 26 M.R.S.A. 966(3); the petition for unit clarification must be timely filed, see Lakes Teachers Ass'n and Mount Vernon School Bd., Report of Appellate Review of Unit Clarification Hearing (Dec. 14, 1977)[78-A-03]; and the showings enumerated in Rule 1.13 of the Board's Rules and Procedures may have to be established. In short, the Legislature recognized that the Board's ability to engage in unit clarifications would be limited, and thus provided that clarifications would be appropriate only in certain limited situations. For the foregoing reasons, the hearing examiner concludes that the record does not show a change in circumstances sufficient to warrant modification in the composition of the existing unit. AFSCME's Petition for Unit Clarification accordingly must be dismissed. __________ 2 AFSCME also argues in its brief that the City is hiring employees under the classifications of "Temporary" or "Seasonal" in order to prevent those employees from being included in the bargaining unit. Again, if this alleged hiring prac- tice was shown to be a change in circumstances surrounding formation of the exist- ing unit, then modification of the existing unit to include the "Temporary" or "Seasonal" classifications might well be appropriate. There is, however, no indi- cation in the evidence that the alleged reason for hiring "Temporary" or "Seasonal" employees constitutes a change in circumstances surrounding formation of the unit. -6- ____________________________________________________________________________________ ORDER On the basis of the foregoing discussion, the hearing examiner finds that the City's Motion to Dismiss must be DENIED, and that AFSCME's Petition for Unit Clarification must be DISMISSED. SO ORDERED. Dated at Augusta, Maine this 6th day of March, 1979. MAINE LABOR RELATIONS BOARD /s/________________________________ Wayne W. Whitney, Jr. Hearing Examiner -7- ____________________________________________________________________________________