City of Bangor and Local 1599, IAFF, No. 80-A-03, affirming No. 80-UD-15

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                              Case No. 80-A-03
                                                   [Issued:  July 18, 1980]
CITY OF BANGOR                )
  and                         )               REPORT OF APPELLATE REVIEW OF
                              )                UNIT DETERMINATION HEARING

     This case arose out of a petition for unit determination filed by the City of
Bangor (City) on November 1, 1979.  The City sought by its petition to remove the
Captains and Lieutenants from a bargaining unit composed of the Captains, Lieuten-
ants, Fire Fighters, Dispatchers and Mechanics employed by the Bangor Fire Depart-
ment on the ground that the Captains and Lieutenants are "supervisory employees."
     A hearing was held on the petition pursuant to 26 M.R.S.A.  966 on December
27, 1979, hearing examiner Robert I. Goldman presiding.  Local 1599, International
Association of Fire Fighters (Local 1599), the bargaining agent for the Fire De-
partrnent bargaining unit, opposed the petition.
     The hearing examiner issued his unit report on February 1, 1980, concluding
that the Captains and Lieutenants should not be extracted from the inclusive Fire
Department bargaining unit which had been in existence for over 13 years, particu-
larly since the governing labor relations statute does not require that supervisors
and those they supervise be placed in separate bargaining units.  The hearing exam-
iner accordingly denied the City's petition.  Pursuant to 26 M.R.S.A.  968(4),
the City on February 8, 1980 filed a timely appeal of the hearing examiner's deci-
     A hearing on the City's appeal was held on February 29, 1980, Alternate Chair-
man Gary F. Thorne presiding, with Employer Representative Don R. Ziegenbein, and
Alternate Employee Representative Harold S. Noddin.  The City was represented by
Malcolm E. Morrell, Jr., Esq., and Local 1599 by Phillip 0. Buckley, Esq.  Both
parties filed post-hearing briefs which have been considered by the Board.

     The jurisdiction of the Maine Labor Relations Board to hear this appeal and
render a decision and order lies in Section 968(4) of the Municipal Public Employees
Labor Relations Act, 26 M.R.S.A.  961, et seq. (Act).

                                 FINDINGS OF FACT
     Upon review of the entire record, the Board makes the following findings of fact:
     1.  The City of Bangor is a public employer as defined in 26 M.R.S.A.
          962(7), and is an aggrieved party within the meaning of 26 M.R.S.A.
          968(4).  Local 1599 is the bargaining agent as defined in 26 M.R.S.A.
          962(2) for the Bangor Fire Department bargaining unit.

     2.  The Fire Department bargaining unit has been in existence at
         least since 1966, when Local 1599 became the bargaining agent.
         The Captains and Lieutenants have been included in the unit
         at least since that time.  The recognition clause in the parties'
         1978-79 collective bargaining agreement contains the following
         unit description:  "all uniformed employees" of the Fire Depart-
         ment, including dispatchers and mechanic, and excepting the Fire 
         Chief, the Assistant Chiefs, and temporary employees."  There are
         approximately 7 Captains, 13 Lieutenants, 83 Fire Fighters, 3
         Dispatchers and 1 Mechanic in the unit.
     3.  On or about November 26, 1979, 5 Captains and 12 Lieutenants signed
         petitions which state:
           "We the Captains (or Lieutenants] of Local Union 1599, City of
            Bangor Fire Fighters, wish to know (sic] longer be represented
            by the said Local after the expiration of the present contract
            which expires December 31, 1979."
         The petitions subsequently were given to City officials.
     The City contends, inter alia, that a petition for unit determination is the
correct procedure for raising the issue whether the Captains or Lieutenants should
be excluded from the existing bargaining unit.  Local 1599 urges that the correct
procedure for raising the issue is a petition for unit clarification rather than
a petition for unit determination.[fn]1
     We hold that since the City was not presented with a claim for recognition
by a labor organization purporting to represent the Captains and Lieutenants, the
petition for unit determination was not a proper filing.  Given the facts of this
case, the only procedure available to the City for attempting to exclude the Cap-
tains and Lieutenants was a petition for unit clarification, filed pursuant to
26 M.R.S.A.  966(3).  We deny the City's appeal and affirm the hearing examiner's
denial of the petition.
     Title 26 M.R.S.A.  967(2) sets forth the times when a petition for unit deter-
mination and petition for election may be filed.  As for a filing by a public
employer,[fn]2 Section 967(2) provides:
          "The executive director of the board, or his designee, upon
           signed request of a public employer alleging that one or more
           public employees or public employee organizations have presented
           to it a claim to be recognized as the representative of a bargain-
           ing unit of public employees, . . . shall conduct a secret ballot
           election to determine whether the organization represents a
           majority of the members in the bargaining unit."
1 The issue whether a petition for unit determination or a petition for unit clarifi-
cation is the correct procedure is important because different evidence is required
by the two procedures.  Compare Section 966(2) of the Act with Section 966(3). Evi-
dence which would suffice for the grant of a unit determination petition would not be
sufficient or necessarily even relevant for granting a unit clarification petition,
and vice-versa.
2 A labor organization may file a petition for unit determination and petition for
election when it can present a "signed petition of at least 30% of a bargaining
unit of public employees that they desire to be represented by an organization."
26 M.R.S.A.  967(2).

     A necessary incident to conducting a secret ballot election is that "a
bargaining unit" of public employees be defined.  Unless the composition of the
bargaining unit is established, it would be impossible to determine which em-
ployees were eligible to vote in the election.  Section 967(1) indicates that the
employer and union may mutually agree on the composition of an appropriate unit.
In the event of a dispute between the employer and union over the appropriateness
of the unit, Section 966(1) provides that the Executive Director or his designee
shall determine an appropriate unit.  Section 966(1) and (2) also set forth standards
to aid the Executive Director's determination.  See Lewiston Firefighters Association
v. City of Lewiston, 354 A.2d 154, 160-161 (Me. 1976).
     Under Section 967(2), an employer can request that the Executive Director or his
designee make a unit determination and conduct a secret ballot election only when
the employer can allege "that one or more public employees or public employee organi-
zations have presented to it a claim to be recognized as the representative of a
bargaining unit of public employees," and the employer declines to grant voluntary
recognition.  In the present case there is no allegation of such a claim for recog-
nition, and no evidence that such a claim was ever presented to the City on behalf
of the Captains and Lieutenants.
     We do not consider the petitions signed on or about November 26, 1979 by the
Captains or Lieutenants to amount to a claim for recognition.  The language of the
petitions certainly is not couched in terms of a demand for recognition, and, in
any event, the City did not receive the petitions until sometime subsequent to
November 26, 1979.  The petitions therefore cannot serve as a basis for the City's
petition for unit determination, filed November 1, 1979.
     Since there is no claim for recognition involved in this case,[fn]3 the only pro-
cedure available to the City for raising the question whether the Captains and
Lieutenants should be excluded from the unit is the unit clarification procedure
set forth in 26 M.R.S.A.  966(3).  We are willing, consistent with the practice
of the National Labor Relations Board (NLRB), to treat an improperly filed peti-
tion for unit determination as a petition for unit clarification, given the appro-
priate circumstances.  See, e.g., Coca-Cola Bottling Co. of New York, Inc., 133
NLRB 762, 763-764 (1961).  Since the question whether there has been a sufficient
change in circumstances and the other issues which could be involved in a unit
clarification case were not litigated by the parties before the hearing examiner,
however, it is not appropriate to treat this case as a unit clarification proceed-
ing.  The City of course may raise the issue it seeks to have decided here by way
of a petition for unit clarification at some point in the future.
     The rights of a public employer or a union to seek a unit determination under
the Act parallel the rights of private sector parties to seek unit determinations

3 It can be said that Local 1599 demands recognition as the representative of the
unit as it continues to act as the bargaining agent.  However, the City has not
challenged the majority status of Local 1599 in the unit, and would in any event
have to demonstrate by objective considerations that it had some reasonable grounds
for believing the union had lost its majority status.  See, e.g., United States
Gypsum Co., 157 NLRB 652, 656 (1966).  No objective evidence appears in the record
which could furnish a reasonable basis to believe Local 1599 has lost its majority
status; the 17 Captains and Lieutenants who signed the petitions represent less
than 17 percent of the employees in the unit.

from the NLRB.  Sections 966 and 967 are analogous to Section 9 of the National
Labor Relations Act, 29 U.S.C.A.  159.  Section 9(C)(1)(B) provides than an
employer may file a representation petition "alleging that one or more individuals
or labor organizations have presented to him a claim to be recognized as the
representative defined in subsection (a) of this section."
     The NLRB accordingly dismisses an employer's Section 9(C) representation
petition, which is the equivalent of a petition for unit determination and peti-
tion for election under Section 967(2), when there is no question concerning
representation.  See, e.g., United Hospitals, Inc., 249 NLRB No. 63, 104 LRRM
1163, 1164 (1980); Gould-National Batteries, Inc., 157 NLRB 679, 681 (1966).
A question concerning representation is established in the case of an employer
petition only by an affirmative claim of a present or potential bargaining agent
that it represents a majority of employees in the unit claimed to be appropriate,
and employer rejection of that claim.  See, e.g., Sonic Knitting Industries, Inc.
228 NLRB 1319, 1320 (1977); American Stores, Inc., 130 NLRB 678, 679 (1961).  Where
there is no question concerning representation and the employer wishes to raise the
issue whether supervisors should be excluded from an existing unit, the correct
procedure is for the employer to file a petition for unit clarification.  See,
Guard Publishing Co., 237 NLRB No. 33, 98 LRRM 1556 (1978); Northwest Publi-
cations, Inc., 200 NLRB 105 (1972).
     In short, under Section 967(2) and the parallel provision in the National
Labor Relations Act, an employer petition for unit determination plainly is not
the correct procedure for raising a unit question when there is no pending demand
for recognition.  Although we do not reach the reasons stated by the hearing ex-
aminer for dismissing the City's petition for unit determination, it is clear that
dismissal of the petition was the correct action.
     The City raises several arguments concerning why its petition for unit determ-
ination is a proper filing.  These arguments are meritless.  For example, the
contention that an employer unit determination petition may be filed during the
existence of a recognized or certified bargaining unit is correct, but over-
looked is the fact that Section 967(2) requires a claim for recognition before
such a filing is proper.
     The Board decisions cited by the City are inapposite to this case for various
reasons.  Since the proceeding in Caribou School Department, Unit Determination
Report (Sept. 5, 1975)[75-UD-28] took place prior to the effective date, of the Section 966(3)
unit clarification legislation, the hearing examiner's decision cannot stand for
the proposition that a unit determination petition rather than a unit clarification
petition is proper in the absence of a question concerning representation. 
     In Brunswick Police Communications Operators' Association, Report of Appellate
Review (Jan. 17, 1977) [77-A-03], the employees filed a petition for unit determination and
petition for election, alleging a unit of police communications personnel, includ-
ing the supervisor, was appropriate.  At the hearing the employer asked for a unit
clarification, contending that the unrepresented communications employees should
be included in an existing unit of police officers.  The hearing examiner rejected
the employer's position on the ground that an accretion to the existing unit would

not be proper since there was a question concerning representation, and ruled
that the separate unit of communications personnel was appropriate.  The Board
affirmed the hearing examiner's rulings.  The case thus stands for the principle
that unit determination rather than unit clarification is proper when there is a
claim for recognition.  Thus, rather than supporting the City, the Brunswick case
directly undermines the City's position.
     Contrary to the City's contention, then, this Board has never approved the
use of a unit determination petition to modify an existing unit when no claim for
recognition was present.  To the extent the City relied upon the two cases dis-
cussed above for such a proposition, this reliance was unwarranted and misplaced.

     Finally, the City argues that we cannot reach the question whether the unit
determination petition is the correct procedure because neither the parties nor
the hearing examiner raised the issue at the unit hearing.  The contention that
the issue was not raised at the hearing examiner level is not correct because the
hearing examiner stated at footnote 2 on page 2 of his report:
          "It is open to question whether a Petition of Unit Determination
           is a proper way for an Employer to raise unit questions of this
           type.  Unit Clarification procedures are available to Employers
           . . ."  
The hearing examiner went on to note that the City had not attempted to put on a unit
clarification case, and stated that since the case came to the Board by way of a
unit determination petition, he would decide the matter in accordance with unit
determination standards.  In light of the hearing examiner's discussion, we believe
that the issue whether the City's petition is proper plainly was preserved for our
determination on appeal.
     Moreover, even if the issue was not raised by the parties or the hearing ex-
aminer, we can see no reason why we should be precluded from raising the issue for
the first time during the appellate proceeding.  While our task in the appeal of
a unit report is to review the evidence presented to the hearing examiner and
determine whether the hearing examiner erred, nothing in Section 968(4) or any
other provision of the Act prevents us from raising and deciding sua sponte a
legal issue such as the one involved in this case.  Indeed, we would be derelict
in our duties were we to allow the circumvention of statutory requirements merely
because the parties or the hearing examiner overlooked the issue.  We consequently
believe that we can properly decide whether the unit determination petition was
the correct procedure in this case.
     Having concluded that the City's unit determination petition cannot stand
since there is no question concerning representation, we need not reach the City's
allegations that the hearing examiner erred by not excluding the Captains and
Lieutenants from the unit.  The hearing examiner denied the petition, which is the
correct result of the case.  We intimate no opinion about whether the Captains
and Lieutenants are supervisors, and, if so, whether these employees should be
removed from the unit.  Nothing in this decision is intended to prejudice the
right of the City of Bangor to file a petition for unit clarification if it so

     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:
     1.  The hearing examiner's denial of the petition for unit determ-
         ination is affirmed.  The Captains and Lieutenants remain part
         of the City of Bangor Fire Department bargaining unit.
     2.  The City's appeal is denied.
Dated at Augusta, Maine this 18th day of July, 1980.

                                         MAINE LABOR RELATIONS BOARD

                                         Gary F. Thorne
                                         Alternate Chairman
                                         Don R. Ziegenbein
                                         Employer Representative
                                         Harold S. Noddin
                                         Alternate Employee Representative