City of Bath and Council 74, AFSCME, No. 81-A-01, affirming 81-UC-01.

STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                      Case No. 81-A-01
                                                      Issued:  December 15, 1980

CITY OF BATH                     )
  and                            )           REPORT OF APPELLATE REVIEW OF
                                 )             UNIT CLARIFICATION REPOPT
     This is an appeal of a unit clarification report filed pursuant to 26 M.R.S.A.
 968(4) on September 8, 1980 by the City of Bath (City).  The City alleges that
the hearing examiner made factual errors in the report, which denied the City's pe-
tition seeking to exclude a group of dispatchers from the existing Bath Police
Department bargaining unit.
     Hearing was held on the appeal on November 5, 1980, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Zieqenbein and Employee Representa-
tive Wallace J. Legge.  The City was represented by Roger R. Therriault, Esq., while
Local 1828 of Council 74, American Federation of State, County and Municipal Employ-
ees, AFL-CIO (Union) was represented by John J. Ezhaya.  At the conclusion of the
hearing the parties engaged in oral argument.
     The City 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).  The Union is a public
employee labor organization.  The jurisdiction of the Maine Labor Relations Board
to hear this appeal and render a decision and order lies in 26 MR.S.A.  968(4).
                              FINDINGS OF FACT
     Upon review of the entire record, the Board modifies and adopts the following
findings of fact made by the hearing examiner:
     1. On February 9, 1970, the City and Union agreed to a bargaining unit consist-
ing of the Deputy Chief, Sergeants and Patrolmen employed by the Bath Police Department.


There is no evidence regarding the history of the description of this bargaininq
unit except that the position of Dispatcher first appeared in the unit description
contained in the 1976-1977 collective bargaining agreement.  The bargaining unit
description in the most recent contract, with a term from July, 1977 to June, 198O,
states that the Union is the bargaining agent "for the members of the Bath Police
Department, with the exception of the Police Chief, Deputy Chief, Matron and
Special Police."
     2.  In February, 1979, after several years of consideration, the City passed
an ordinance which created a new Communications Department.  The ordinance pro-
vides that the new department has charge of the communications systems involved
with all police and fire department operations, and will handle such other communi-
cations-related matters as deemed advisable or necessary by the City Manager.  The
intention behind the creation of the new department was to establish a centralized
dispatching system which would in the long run be more economical and effective
than previous systems.
     3.  Prior to the creation of the new department, the bargaininq unit contained
two Sergeants, one Detective, five Senior Patrolmen, twelve Patrolmen, one Clerical,
and four Dispatchers.  The dispatchers and the clerical worker are not sworn police
officers.  The dispatchers were located in the City Hall building, right across the
hallway from the patrolman squad room.  They staffed the communications center at
all times, working around the clock, as do the police officers, although the shift
schedules for dispatchers and police officers are different.  They handled all police
communications, including administrative calls, and also some ministerial police
functions such as parking ticket bookkeeping; sending out notices of parking fines
and receiving payment of the fines; police department filing; bicycle registration;
and the issuance of permits to drive within the City without a current motor vehicle
inspection sticker.
     4.  Prior to the new department, the dispatching of fire vehicles and ambulan-
ces was handled by fire fighters or CETA employees located in the fire station.
The City's Public Works Department and Sewer Department, soon to be consolidated
into a single Public Services Department, each need a small amount of dispatching
which is currently handled by a secretary in the Public Works Department.
     5.  Fire and ambulance dispatching was consolidated with police dispatching
duties as a result of the establishment of the Communications Department.


A separate budget for the new department was created by transferring funds from
the Police Department budget.  New communications lines and equipment were in-
stalled, costing more than $10,000.  The dispatchers are still located next to the
Police Department in City Hall, in a larger room than before.  The City plans to
add Public Services Department communications to the new department.  An emergency
"911" telephone system also is in the planning stages.  If implemented, such a system
will require additional equipment which will require more space than the communica-
tions center now has available.  The Communication Department might have to move
to a new location at that point, although there are no specific plans for such a
move at the present time.  The City also hopes that its centralized dispatching
system will attract surrounding towns to contract with the City for dispatching
     6.  The head of the Police Department, Police Chief Bruton, has also been
named head of the Communications Department.  One of the dispatchers has been pro-
moted to the position of Supervisor of Communications, with a ten percent pay raise,
and a fifth dispatcher has been hired.
     7.  The dispatchers now perform the additional duties of handling fire and
ambulance communications.  These additional duties constitute approximately a
14% increase in message traffic, based on a breakdown of 2,879 police-related calls
versus 389 fire and ambulance-related calls over the six months prior to the unit
clarification hearing.  The dispatchers continue to perform all other duties and
functions performed before the creation of the new department, except that they no
longer are required to accept payment for parking ticket fines.
     8.  As before, patrolmen fill in for the dispatchers for a few minutes while
the dispatchers take breaks.  The patrolmen also have continued to transport the
dispatchers to and from home due to a problem with vandalism and a shortage of
parking around City Hall.  Dispatcher uniforms, with "Bath Police Department"
patches on the sleeves, are still ordered through the Police Department supply
     9.  The City notified the Union of all key events involved in the creation of
the Communications Department.  In a July 25, 1979 letter to the Union, the City
stated that it no longer considered the dispatchers to be part of the police bar-
gaining unit.  The City indicated its intention to continue the dispatchers'


benefits, which were the same as those of other police department employees, until
the contract expired on June 30, 1980.  The City also stated that it was willing
to bargain with the dispatchers for a separate contract if the dispatchers so wished.
There is no evidence that the Union ever agreed to a separate unit of dispatchers
or acquiesced to the City's assertion that the dispatchers were no longer part of
the old unit.  When bargaining commenced for a successor contract to commence July
1, 1980, the Union maintained that the dispatchers were still in the unit.  Although
the City had hoped for a voluntary agreement on separate units, it filed its peti-
tion for unit clarification when it became clear the Union would not agree to a
separate unit of dispatchers.
    10.  A dispatcher was secretary/treasurer of the Union's Local 1828 for a
four-year period ending in June, 1980.  The Supervisor of Communications currently
is a member of the Union's negotiating team.  The dispatchers wish to remain in
the existing bargaining unit.
     The hearing examiner concluded that the City's petition should be dismissed
because there has been little change in the clear and identifiable community of
interest shared by the job classifications included in the unit.  The City urges
that the hearing examiner erred because he focused on the dispatchers' ancillary
functions rather than their primary functions.  These ancillary functions cannot
serve, the City argues, as the basis for a community of interest finding.  In
addition, the City argues that the Union is estopped from asserting that the dis-
patchers continue to share a community of interest with the other members of the
     Having carefully considered the facts of this case, we conclude that the
hearing examiner correctly found that the dispatchers share a clear and identifi-
able community of interest with the other members of the unit.
     We do not agree with the City's contention that the hearing examiner improp-
erly emphasized the dispatchers' ancillary functions of handling Police Department
paperwork, issuing permits, and performing other ministerial duties.  The hearing
examiner found a community of interest exists because the members of the unit share
a similarity in work performed in that all deal with the world of emergencies and


public protection; the dispatchers' job is integrated with the jobs of the police
officers in that they communicate with each other constantly during the working
day and frequently have other interchanges; all the employees are subject to the
common supervision of the Police Chief; the employees work at the same location;
the dispatchers desire to remain in the bargaining unit, and the unit has a history
of successful collective bargaining since at least 1976.
     All of these factors relied upon by the hearing examiner involve the dispat-
chers' primary function - dispatching - and all are among the traditional indicia
upon which community of interest determinations are made.  See, e.g., AFSCME, Pine
Tree Council No. 74 and City of Brewer, Case No. 79-A-01 at 3-4 (Oct. 13, 1979).
All these factors are supported by the evidence, and all of the factors taken to-
gether show very plainly that the dispatchers continue to share a clear and identi-
fiable community of interest with the other members of the unit.
     As the hearing examiner found, the creation of the new Communications Depart-
ment meant little substantive change in the dispatchers' job.  The dispatchers
continued to perform the primary function of dispatching calls, the same function
they were performing in 1976 when the City agreed that they should be included in
the bargaining unit.  The only changes were that the dispatchers took on additional
dispatching duties (for the Fire Department and ambulance service), constituting
approximately a 14% increase in message traffic, while dropping the duty of accept-
ing payment for traffic tickets.  Such changes hardly amount to the sufficient
change in circumstances required by 26 M.R.S.A.  966(3) before an existing unit
properly can be modified.  Modification of the bargaining unit on the basis of
such minor changes, particularly when the employees desire to remain in the unit,
would interfere with the free exercise of the employees' Section 963 rights, and
would also be contrary to our policy of discouraging the proliferation of small
municipal bargaining units.  See, e.g., Town of Yarmouth and Teamsters Local 48,
MLRB No. 80-A-04 at 4 (June 16, 1980).
     The fact that a new department was created does not by itself mean that the
dispatchers are "automatically" excluded from the existing unit.  Each unit clari-
fication petition must be judged on its own facts, and the proper analysis, as
the hearing examiner recognized, is to ascertain exactly what changes have occurred
and to weigh whether these changes are sufficient to meet the requirements of
Section 966(3).  Because the slight changes in duties involved in this case fall


far short of the Section 966(3) requirements, the hearing examiner correctly
denied the City's petition.
     The City's argument that it will have difficulty negotiating a contract if
the dispatchers remain in the unit is unpersuasive.  The City has already nego-
tiated two agreements for the unit as it presently exists, and there is no evi-
dence that any difficulty was encountered in these negotiations.  Dispatchers
are commonly included in police bargaining units, see, e.g., Teamsters Local 48
and City of Biddeford, MLRB Unit Determination Report (Aug. 4, 1978) [78-UD-34]; Brunswick
Police Communications Operations Association and Town of Brunswick, MLRB Report
of Appellate Review (Jan. 17, 1977) [77-A-03], and we are not aware that bargaining for
these units has been unduly difficult. 
     Good faith and common sense will mean that a successor contract for the bar-
gaining unit can be negotiated without excessive difficulty; clauses applicable
only to the dispatchers can easily be included in the contract, and we anticipate
that the parties will experience difficulties only if they wish to create them.
In any event, we cannot understand why negotiating one contract for the unit
would be any more difficult than negotiating two separate agreements, which
likely would be required if the dispatchers were removed from the unit.
     Finally, we do not agree with the City's argument that the Union is estopped
from urging that a community of interest continues to exist between the dispat-
chers and other members of the unit.  The issue of estoppel seemingly was not
raised before the hearing examiner and the City is precluded from raising a new
issue for the first time on appeal.  Teamsters Local 48 and City of Portland,
MLRB Report of Appellate Review at 4-5 (Feb. 20, 1979) [78-A-10].  Assuming that the issue
was raised, however, we do not see that the Union's failure to respond to the
City Manager's July 25, 1979 letter can be held to estop the Union from asserting
a position in this proceeding.  That letter states that the City no longer consi-
dered the dispatchers to be part of the bargaining unit, and did not, in our
opinion, impose on the Union a "duty to speak" prior to the commencement of nego-
tiations.  See, e.g., Milliken v. Buswell, 313 A.2d 111, 119 (Me. 1973).  In any
event, nothing estopped the hearing examiner from ruling on the merits of the
petition, which was filed by the City, not the Union.
     We will overturn a hearing examiner's rulinqs and determinations if they
are "unlawful, unreasonable, or lacking in any rational factual basis."  Team-
sters Local 48 and City of Portland, supra at 6.  Nothing presented by the City


shows that the hearing examiner committed any of these errors. We accordingly will
affirm the hearing examiner's report and deny the city's appeal.                                                                                                                                                                  
     Nothing stated in this Report should be understood to imply that the present              community of interest necessarily will continue to exist if the City implements                some or all of its current plans and ideas.  If the "911" system is implemented, if
the dispatchers begin to handle communications for all City departments, if other
towns contract to use the City's communications system, or if the communications
operation is moved to a different facility, reducing the amount of time the dis-                patchers spend on Police Department matters and removing the dispatchers' inteqral
relationship with the Police Department, then another petition for unit clarifica-
tion will be appropriate.  We hold here only that since there has been insufficient
changes in circumstances surrounding formation of the existing unit, the hearing
examiner correctly held that removal of the dispatchers would be premature and
     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 August 21, 1980 Unit Clarification Report in this matter is affirmed.                       
As ordered by the hearing examiner, the bargaining unit includes all members of the
Bath Police and Communications Departments, with the exception of the Police Chief,
Deputy Chief, Matron and Special Police.                                                                                      
     2.  The City's September 8, 1980 appeal is denied.
Dated at Augusta, Maine this 15th day of December, 1980.                                     
                                          MAINE LABOR RELATIONS BOARD                                                                  
     The parties are advised of           Edward H. Keith
their right pursuant to 26 M.R.S.A.       Chairman
 968(4) and 972 to seek review
of this Report by filing a com-
plaint in Superior Court in               /s/_______________________________
accordance with Rule 80B of               Don R. Ziegenbein
the Rules of Civil Procedure              Employer Representative
within 30 days of receipt of
this Report.
                                          Wallace J. Legge
                                          Employee Representative