City of Bangor and Local 1599, IAFF, No. 80-UD-15, aff'd 80-A-03 STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case No. 80-UD-15] [Issued: February 1, 1980] ______________________________ ) CITY OF BANGOR ) ) UNIT DETERMINATION and ) ) REPORT LOCAL 1599, INTERNATIONAL ) ASSOCIATION OF FIRE FIGHTERS ) ______________________________) As the result of the filing of a Petition for Unit Determination filed by John R. Perry, Personnel Director, on behalf of the City of Bangor on November 1, 1979, a hearing was conducted on December 27, 1979, in the First Floor Conference Room, City Hall, Bangor, Maine, as provided in 26 MRSA Section 966. Present at the hearing for the petitioner were: Malcolm E. Morrell, Jr., Esquire Attorney for the City of Bangor John R. Perry Personnel Director, City of Bangor James L. McKenzie Chief, Bangor Fire Department Present for Local 1599, International Association of Fire Fighters (AFL-CIO), were: Phillip D. Buckley, Esquire Attorney for Local 1599 Willaim E. Leighton Lieutenant, Bangor Fire Department and President of Local 1599 James C. Cook Fire Fighter, Bangor Fire Department Also present was the undersigned, Robert I. Goldman, hearing examiner, as designee of the executive director of the Maine Labor Relations Board. By its petition the City of Bangor (City) seeks to exclude the positions of Fire Captain and Fire Lieutenant from a bargaining unit which currently consists of all uniformed employees of the Bangor Fire Department, including Dispatchers and Mechanic, excepting only the Fire Chief, the Assistant Chiefs and temporary employees. It is the City's position that the Fire Captains and Fire Lieutenants are supervisors as defined in Section 966(1) of the Public Employees Labor Relations Act (the Act) and therefore should be excluded from the unit of non-supervisory employees.[fn]1 Local 1599, International Association of Fire Fighters (AFL-CIO) _______________ 1 Section 966(1) of the Act provides: "In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other cri- teria, if the principal functions of the position are characterized by performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees, or performing such duties as are distinct and dissimilar from those performed by the employees supervised, or exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the estab- lishment of performance standards for subordinate employees and taking corrective measures to implement those standards." The City makes no claim that any of the Captains or Lieutenants are confi- dential employees or otherwise excluded from coverage of the Act pursuant to Section 962(6). Also the Petitioner has made no claim that individual Captains or Lieutenants should be excluded if the claim for class exclusion should fail. [-1-] __________________________________________________________________________________ (Local 1599) opposed the petition. The Fire Captains and Fire Lieutenants have been included in a single over-all unit with Fire Fighters since at least 1966, when Local 1599 was first certified as the collective bargaining agent. Successive collective bargaining contracts have been consummated between the City and Local 1599 from that time through 1979. The latest contract was for a two-year period beginning January 1, 1978, and terminating December 31, 1979, and the parties are now engaged in negotiations for a successor agreement. Prior to the instant petition, neither the City nor others have challenged the inclusion of the Captains and Lieutenants in an over-all unit with Fire Fighters. As a matter of fact, in 1974 the City filed a Petition for Appropriate Unit Determination in which it sought to have the Dispatcher and Mechanic positions excluded from the unit of Fire Fighters. The Executive Director, acting as hearing examiner in the matter, found that a substantial community of interest between the Mechanic, Dispatchers and Fire Fighters warranted a continuation of the all-inclusive bargaining unit and denied the petition for exclusion.[fn]2 In the instant matter the hearing examiner finds that the petition of the City to exclude Fire Captains and Fire Lieutenants from the over-all unit which includes Fire Fighters, Dispatchers and Mechanic should be denied for the reasons set forth below. The evidence taken at the hearing does not support the proposition that, as a body, the Captains and Lieutenants should be extracted from the inclusive unit with Fire Fighters, Dispatchers and Mechanic which was existed for over thirteen years, despite the fact that many of the Captains and Lieutenants exercise some aspects of supervisory authority over Fire Fighters. Units which include both fire fighters and officers are not uncommon in this state, and furthermore the Act does not require that supervisors and those they supervise should necessarily _______________ 2 City of Bangor and Local 1599, International Association of Fire Fighters. Unit Determination Report, December 31, 1974 [75-UD-19]. It is open to question whether a Petition for Unit Determination is a proper way for an Employer to raise unit questions of this type. Unit Clarification procedures are available to Employers and incumbent bargaining agents, and a change of circumstances surrounding for- mation of the existing bargaining unit must be alleged to have changed suffi- ciently to warrant modification. In the instant matter the Employer has not claimed a change of circumstances surrounding formation of the bargaining unit. See Section 966(3) Unit Clarification. Unit Clarification is not available to employees in the bargaining unit or to others. However, if this matter were to have been treated as a Unit Clarification rather than Unit Determination, the result would be the same for want of asserting and successfully showing any change in circumstances. It should be noted that the Unit Clarification provision did not become part of the statute until 1975 and was not available to parties at the time the Unit Determination petition regarding Dispatchers and Mechanic was filed by the City in November 1974. See Chapter 697, P.L. 1975. Since this matter was brought to the Board by way of Unit Determination, the hearing officer has treated it as such and has applied the standards appli- cable to Unit Determination proceedings. -2- __________________________________________________________________________________ form separate units.[fn]3 The testimony at the hearing did not evidence any special or significant problems affecting the efficient operation of the Department, the maintenance of discipline, or the effective administration of the collective bargaining agree- ment because officers and Fire Fighters are joined in a common unit. Indeed, the only note of dissatisfaction or disharmony concerned a prevalent unhappiness during the last negotiations with respect to differential in wage scales. However, unhappiness of a group of employees with the result of wage negotiations is not a basis in itself for permitting separation from an otherwise appropriate unit. The Captains and Lieutenants comprise an appreciable segment of the bargaining unit and it reasonably can be expected that their special needs can be adequately projected and protected in future contract negotiations, albeit some healthy give and take within the bargaining unit may be involved.[fn]4 The current complement of the Fire Department Consists of the Fire Chief, four Assistant Chiefs, five Fire Captains (there being an additional vacancy), thirteen Lieutenants and 83 Fire Fighters. All Fire Fighters are privates; there is no Sergeant or Corporal rank. There are also three Dispatchers and one Mechanic. The Central Fire Station on Main Street houses two fire companies and the Chief and Assistant Chiefs have offices there. Three Captains and four Lieutenants are also located in the Central Station. One of the Captains serves _______________ 3 See City of Lewiston and Hot Lunch Workers' Unit, Unit Clarification Report, December 19, 1978 [79-UC-03]; see also Employees of the City of Philadelphia (Fire Department), 844 GERR 21 (Jan. 14, 1980). Employer Exhibit C-5 is a copy of a petition which contains signatures of most of the Captains and Lieutenants and which was offered as evidence of their interest in disassociating from the common unit with Fire Fighters. The language of that petition, however, states that the employees desire to "know [sic] longer be represented by said Local after the expiration of the present contract. . . ." Whether the petition is an expression of desire to separate from the bargaining unit or simply an expression of disaffection with the current bargaining representative, the result of this proceeding would be the same. If a group of disaffected employees were interested in altering an existing bargaining unit structure, it would appear that the Unit Determination process would be a logical option for them. Such a petition would be subject to the stan- dards and conditions contained in the Act and in the Rules and Procedures of the Board. Of course, voluntary agreement and the decertification process would pre- sent other possibilities, depending upon the circumstances. Given a relatively stable bargaining history, it would seem that those seeking a separate identity would have to show a distinct community of interest from others in the unit. 4 There was testimony that certain regular Fire Fighters were intent on retaliating against the Captains and Lieutenants for having involved themselves in the petition effort. When the retaliation talk surfaced the President of Local 1599 (who is a Lieutenant) and a leader of the petition drive to oust Local 1599 (also a Lieutenant) discussed the alleged threat, and thereafter a meeting of the Fire Fighters was called and it was made clear that such views were irresponsible and inappropriate. That quick and forceful response apparently squelched any notions of retaliation and is an example of the leadership qualities and maturity that are sometimes required in dealing with potentially damaging intra-organizational difficulties. -3- __________________________________________________________________________________ full time as Fire Prevention officer. Fifty to fifty-five Fire Fighters and the Dispatchers and Mechanic also are assigned to the Central Station. In addition to the companies at the Central Station, there are three outlying stations, each under the charge of a Captain. In the outlying stations there is one officer on duty at all times and, typically, four Fire Fighters. Representative is Station 6 (Center Street) which has 14 people assigned to it. Of these, 10 are Fire Fighters; there are 3 Lieutenants; and a Station Captain in charge. The Department operates on a two-shift basis--8 a.m. to 6 p.m. and 6 p.m. to 8 a.m. Officers and Fire Fighters are on a 9-week rotating cycle. The Chief works a regular work week. Assistant Chiefs work the same schedule as Captains and Lieutenants. Privates wear a distinctive uniform from officers. Assistant Chiefs, Captains and Lieutenants wear similar uniforms and wear blue shirts. The Chief also has a distinctive uniform and wears white shirts. Beginning January 1st, 1979, through December 31, 1979, the pay schedule for the Department was as follows: Pay Range Step Step Step Step Step Class Code Class Title Number A B C D E 401 Fire Dispatcher 12F 4.13 4.28 4.44 4.63 4.82 402 Fire Equipment Mechanic l5F 208.01 215.34 222.67 231.24 241.02 403 Fire Prevention Inspector 18F 238.16 247.30 255.30 264.43 273.57 405 Fire Fighter 14F 191.19 198.05 204.90 213.85 223.86 407 Fire Lieutenant l6F 235.01 244.15 252.15 409 Fire Captain 18F 264.43 273.57 (In addition to the adjustments above those members of the department who were in the step plan from A to D were eligible for a merit increase on their anniversary date.) There was some testimony that the Lieutenants at the Central Station make out the "Running List," assign men as per the schedule, supervise cleaning and provide training. The officer on duty reads roll call, posts assignment sheets, sees that gear is placed on vehicles, makes sure equipment is checked and sees that maintenance is performed. Typically, neither Captains nor Lieutenants engage in common cleaning routines. The testimony did not disclose that the foregoing duties were performed with the frequency or intensity necessary to meet the "principal functions" test contained in Section 966(1). There was testimony to also show that a Captain in an outlying station is generally responsible for the station and its general maintenance. He may make particular assignments consistent with the station schedule. He and Lieutenants at the station conduct regular training sessions and post-fire critiques at which attendance is mandatory. He may recommend transfer of personnel; one witness -4- __________________________________________________________________________________ remembered an instance of this. He maintains records and logs for the station. He works a regular shift and there are usually five men on duty at all times-- 4 Fire Fighters and an officer. Normally a Lieutenant is not on duty on the same shift with the Captain. On occasion a Captain or Lieutenant may hire an extra person from the off-duty list to replace absentees; however, this normally would require clearance from the Assistant Chief on duty. In case of problems--personnel or otherwise--the Lieutenant may try to handle the problem himself and when unsuccessful will go to the Captain. A Captain may grant a compensatory day off if an extra man is available. At the Central Station, the Chief or Assistant Chief usually has final authority in granting compensatory requests. In outside stations a Captain or Lieutenant can approve substitution of one man for another in a given shift schedule, although this is frequently arranged informally between Fire Fighters themselves without the necessary intervention of an officer. In case of repeated lateness or in case of absences the matter is referred to the Chief or Assistant Chief who may consult with the station officer concerning what action to take. Station Captains, and occasionally Lieutenants, are consulted by Assistant Chiefs when the latter prepare the annual evaluation of Fire Fighters, although the final report is the responsibility of and is signed by the assigned Assistant Chief. The officer on duty usually goes through a routine at the beginning of each shift to see that maintenance functions are performed regarding the building and equipment. They see that work rules are carried out. The Captain makes out station work rules. Station Captains may make minor budgetary decisions, but are not directly involved in the formal budget process or in ordering major repairs or approving significant expenditures. As indicated, officers conduct training sessions; Fire Fighters rarely conduct such sessions without the presence of an officer. On the other hand, the most recent collective bargaining agreement indicates there is very little contract administration performed by Captains or Lieutenants. That agreement provides that grievances initially should be settled by discussion with "Platoon officers, if possible." Joint Exhibit 1, Art. 32(3). Officers are given some responsibility over equipment in their custody (as are Fire Fighters). Art. 7(2). Fire Fighters who are ill are required to notify the Chief, the Assistant Chief, "or the CO in charge of the shift" no less than one hour before shift time to draw sick benefits. Art. 16(8). The contract does not contain a disciplinary code or appeal procedure, other than the grievance procedure. Captains and Lieutenants have no role in the hiring, firing or promotion process. They have no role in the collective bargaining process. The Chief testified that officers had a primary role in disciplinary matters and that the Department operated under the chain-of-command principle. However, the Chief also testified that everything is brought to his attention, although Captains and Lieutenants may handle minor disciplinary matters. Also, when a Lieutenant cannot handle a disciplinary matter on his crew, he might go directly to the Assistant Chief, thus by-passing the Station Captain. In any event, the testimony did not establish that "minor disciplinary" matters occurred with such routine or regularity to qualify under the "principal functions" test of Section 966(1). -5- __________________________________________________________________________________ When responding to a fire, typically the Captain, if on duty, will ride on the first engine out; otherwise a Lieutenant will do so. The officer rides up front in the cab alongside the driver. Rarely does a regular Fire Fighter, other than the driver, ride in the cab. At the scene of the fire, the Captain or Lieutenant is in charge until an Assistant Chief arrives on the scene. The senior officer supervises and directs the fire fighting activity, making decisions concerning breaking doors, running lines, setting up ladders, and so on. Invariably an Assistant Chief attends fires of any significance and is in command once there. The Chief or Assistant Chief on duty is frequently advised by radio of the nature and extent of the fire, the equipment being used, and the like, often times while the engines are on the way or when first arriving at the scene. Lieutenants rather commonly will join Fire Fighters in actual fire fighting activity and Captains do so to a lesser extent. The foregoing does not exhaust the various activities within the station house and at the scene of fires or emergencies. The Department, contrary to expressions in the collective bargaining agreement and job descriptions, has no written set of regulations or written code. According to the testimony none have ever existed. Although the job descriptions submitted into evidence describe the general duties actually performed for each position represented, the testimony clearly showed that individuals were rarely, if ever, shown a copy of the job description, whether at the time of hire or any time subsequent.[fn]5 Almost all members of the Department learned about their job functions by experience or discussion with other Fire Fighters. It is clear that at the station house and at the scene of the more common type of fires, Fire Fighters require little direction or supervision. Most Fire Fighters have sufficient experience and skill so that they know the routine with respect to the maintenance and care of the station house and fire fighting equipment, and know the proper way to approach and attack the typical fire. Under the standards contained in the Act, to support a finding that a position is supervisory requires not only that one of the three criteria exist, but that the "principal functions of the position are characterized by performing such management control duties."[fn]6 (Emphasis supplied) The evidence of supervisory status may take any of the three forms set out in the statute. The positions must involve either: _______________ 5 The testimony indicated that rarely, if ever, has a job description been pre- sented to or reviewed with a newly-hired or promoted employee. Indeed, the Chief testified that he accumulated the various job descriptions in his office only a short time before the hearing and that he could not recall ever having shown or discussed the Lieutenant's job description with any Lieutenant at any time. Many of the wit- nesses testified that they had never seen a job description for their position. The job descriptions are all dated "12/69," presumably the date of adoption. It was testified that there was little change in the actual job functions of the positions in the intervening years. There was also testimony that the job descrip- tions accurately portrayed the general duties for each of the positions represented. However, there was no testimony indicating that any single or combination of duties referred to in the exhibits are preformed with sufficient routine or regularity to qualify under the "principal functions" test of Section 966(1). Therefore, although the job description for Captain (Ex. C-l) and Lieutenant (Ex. C-2) contain references to "supervisory" and "disciplinary" aspects, and the like, of the positions, it is necessary to examine the descriptions in the context of the testimony given at the hearing concerning the actual operation of the Fire Department and the actual duties of the fire fighting force in order to determine whether the "principal functions" test has been met with respect to the two positions. 6 Section 966(1), supra, page 1, fn. 1. -6- __________________________________________________________________________________ 1) such duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees; or 2) performing such duties as are distinct and dissimilar from those performed by the employees supervised; or 3) exercising judgment in adjusting grievances and in enforcing a collective bargaining agreement or estab- lishing or participating in the establishment of per- formance standards for subordinate employees and taking corrective measures to implement those standards. It is clear from the record that neither Captains nor Lieutenants compose the basic schedule of operations for the Fire Department. The Chief testified that they did not. Captains may impose work rules and assign fire fighters within the framework of the schedule, but they do not make out the schedule. The testimony regarding "assigning" was not uncontradicted and did not show that assigning of individual Fire Fighters was a routine activity of Captains and Lieutenants. Both positions--Captain and Lieutenant--oversee and review the work of Fire Fighters. However, the evidence failed to establish that Lieutenants engage in overseeing and reviewing the work of others as "the principal function" of their position. The evidence does not support a conclusion that Lieutenants, particu- larly as a class, spend a major portion of their time performing such functions. Nor can it be found that Lieutenants spend a significant portion of their time performing duties which are distinct and dissimilar from those performed by Fire Fighters. It is equally clear that the role of Lieutenants does not involve the "exercising of judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the establishment of performance standards for subordinate employees and taking corrective measures to implement those standards," except to a minimal degree. Nor can it be said that the three criteria, even if considered in the cumulative, form "the principal functions" of the Lieutenant position.[fn]7 Rather, Lieutenants as a class appear to be more in the nature of "group leaders" or "working foremen" rather than super- visors. They are more appropriately considered "lead men" who have various added responsibilities of a limited nature, but who essentially work directly with Fire Fighters in the performance of fire fighting duties.[fn]8 However, Captains have additional duties and responsibilities. They are "in charge" at the outlying stations; they have considerable report-writing and log-keeping responsibilities; they do most of the paper work for the station. They are commonly consulted when Fire Fighters are evaluated. They are always in command at fires until an Assistant Chief arrives, and they arrange training sessions and make assignments thereto. More typically than Lieutenants, Captains will have quarters which are distinctively separate from the general quarters of Fire Fighters. _______________ 7 The "principal functions" tests in Section 966(1) are clearly stated in the alternative or disjunctive and the hearing examiner so applied them in this report. 8 If all Assistant Chiefs, Captains and Lieutenants in the force were con- sidered supervisors, the ratio of supervisors to regular employees would be less than 1 to 4 (excluding the vacant Captain position). -7- __________________________________________________________________________________ However, even if the record clearly established that Captains, as a class, were undeniably supervisory personnel meeting every standard contained in the Act, the record fails to establish any basis to now exclude either them or the Lieutenants from the current bargaining unit which has existed for so many years. There is more than an adequate community of interest between the officers and Fire Fighters employed by the Bangor Fire Department. Although there is a differ- ential in the weekly wage scale, it is not remarkable; the scale for Mechanic is also higher than that of Fire Fighter. All employee benefits (other than salary) are the same. Officers are promoted from the ranks of Fire Fiqhters. Shift hours are the same. They are housed in the same building, live and work in the same general environment. All members of the unit have received the same basic fire fighting training and acquire the same skills. They perform essentially the same tasks--training for fire fighting, keeping fire fighting equipment and mechanisms in proper repair and preparation for fire fighting, and responding to and fighting fires or responding to other emergencies. The record shows that the Assistant Chiefs and the Chief himself perform most of the true managerial and supervisory functions required in the Department, including scheduling and evalu- ating personnel, as examples. Furthermore, as previously indicated, the record fails to demonstrate that there have been significant problems of administration, maintenance of discipline, or contract administration caused by the inclusion of officers in the Fire Fighters unit. Officers have been included in the over-all unit for more than thirteen years without unreasonably hampering the administration of the Department. Isolated instances of dissatisfaction seem to have been intell- gently handled. The Legislature did not prohibit supervisors from being placed in the same unit with those supervised where appropriate.[fn]9 The statute does not resolve all concerns of divided loyalty, nor does it insulate against intra-unit politics or occasional clashes of interest. Based upon the foregoing, the existing unit which includes Captains and Lieutenants is appropriate, and the petition of the City is denied. SO ORDERED. Nothing contained herein is intended to preclude any subsequent and mutual agreement of the parties as to the composition of the bargaining unit(s). Dated at Augusta, Maine, this 1st day of February, 1980. MAINE LABOR RELATIONS BOARD /s/_________________________________ Robert I. Goldman Hearing Examiner _______________ 9 Each case should be considered on its merit. It would appear that where there is no established bargaining history, separate units would be more likely than where there is a lengthy, relatively stable history of an over-all unit. -8- __________________________________________________________________________________