City of Bath and Council 74, AFSCME, No. 81-UC-01, affirmed by 81-A-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 81-UC-01 [Issued August 21, 1980] ____________________________ ) CITY OF BATH ) ) and ) ) UNIT CLARIFICATION LOCAL 1828, COUNCIL 74, ) AMERICAN FEDERATION OF ) STATE, COUNTY AND MUNICIPAL ) EMPLOYEES, AFL-CIO ) ____________________________) The City of Bath filed a Petition for Unit Clarification with the Executive Director of the Maine Labor Relations Board on July 2, 1980. A hearing in the matter was held on August 14, 1980, in Augusta, Maine, pursuant to Section 966 of the Municipal Public Employees Labor Relations Law (Act), 26 M.R.S.A. 966. Present for the City were: Roger R. Therriault City Solicitor C. Russell Bruton Communications and Police Departments Head (Police Chief) Michael L. Austin Acting City Manager Present for the Union were: John J. Ezhaya AFSCME Representative Carole D. Thomas Dispatcher Rita A. Sturtevant Dispatcher By its petition the City seeks a determination that the dispatchers of the City's new Communications Department are not part of the Police Department bargain- ing unit. At the hearing the City also alleged that a Dispatcher Supervisor was a "supervisor" within the meaning of 26 M.R.S.A. 966(1) and should not be included in the same bargaining unit as the other dispatchers. The Union countered that the dispatchers' job duties had not changed significantly despite the new organizational structure and, therefore, that the petition should be denied. It also disputed the "supervisor" claim. Six documents were submitted into evidence: the City ordinance establishing the new Communications Department; minutes of two City Council meetings; a letter to an AFSCME representative from the City Manager; the original Agreement on Appro- priate Bargaining Unit (Form 1); and the Petition for Unit Clarification with 1977- 1980 contract. FINDINGS OF FACT Based on the testimony, representations and documents submitted, I find the following: 1. On February 9, 1970, the parties agreed to an original bargain- ing unit consisting of Deputy Chief, Sergeant and Patrolman. Neither party was able to present any evidence bearing on the history of this bargaining unit description beyond the fact that [-1-] ____________________________________________________________________________________ the Dispatcher position first appeared in the 1976-1977 contract. The bargaining unit description in the most recent contract, from July 1977 to June 1980 (the Agreement), 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 many years of consideration, the City passed an ordinance which created a new Communications Depart- ment. It was charged with handling the communications of the police and fire departments and such other communications-related matters as the City Manager may decide. The intention was to create a centralized dispatching system which would be more economical and effective in the long run. 3. Prior to the change, the bargaining unit contained two Sergeants, one Detective, five Senior Patrolmen, twelve Patrolmen, one Clerical, and four Dispatchers. (The dispatchers and clerical workers 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. They handled all police communications, including administrative calls, and also some ministerial police functions such as: parking ticket bookkeeping, sending out notices, and receipt of payment; 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 change, the dispatching of fire vehicles and ambu- lances was handled by fire fighters located at the fire station. The Public Works Department and Sewer Department, soon to be con- solidated into a single "Public Services" Department, each have the need for a small amount of dispatching which is currently handled as part of the duties of a secretary in Public Works. 5. The immediate impact of the reorganization was the consolidation of fire and ambulance dispatching with police dispatching. This was accomplished with new communications lines and equipment, costing more than $10,000.00. The City plans on adding the Public Service Department communications to this center as well. An emergency "911" system is also in the planning stage. When implemented, such a system would require additional equipment which would require more space than the communications center now has available. An expanded space, perhaps at a new location, would be required. There are no specific plans or dates at this time. The City also hopes that its centralized dispatching center will attract surrounding municipalities to contract with the City for additional dispatching services. 6. The Police Department Head, Police Chief Bruton, was also named as the Communications Department Head. In addition, Dispatcher Sturte- vant was denominated "Supervisor of Communications" and given a ten percent pay raise. Finally, the hiring of an additional dispatcher was authorized. 7. The changes in the job duties of the dispatchers have included the addition of fire and ambulance communications. This constitutes approximately a l4% increase in message traffic. This percentage is based on a breakdown of 2,879 police-related complaints versus 389 fire and ambulance-related complaints over the last six months. All other duties and functions have remained the same, with the sole exception of relief from accepting parking ticket payments. 8. As before, patrolmen continue to fill in for dispatchers on occa- sions for short breaks. In addition, patrolmen continue to transport the dispatchers to and from home in police cruisers: a practice necessitated by safety concerns and a parking shortage. Dispatcher uniforms (dark blue pants with light blue shirt, in contrast to the solid dark blue of police officers and firefighters), are still ordered through the police quartermaster. -2- ____________________________________________________________________________________ 9. When the City created the Communications Department, it notified the Union of all the key events. A separate budget was created by transferring funds from the Police Department budget. The City explained, in a letter dated July 25, 1979, that it no longer considered the dispatchers to be part of the police bargaining unit. It indicated its intention to continue their benefits, which were the same as other police department employees, as provided in the Agree- ment until its expiration on June 30, 1980. It was willing to bargain with the dispatchers for a separate contract at any time properly requested. There is no evidence that the Union ever agreed to a new, separate unit or acquiesced to the City's claim. To the contrary, when bargaining commenced for a successor agreement to begin on July 1, 1980, the Union was maintaining that the dispatchers were still in the unit. Although the City had hoped for a voluntary rearrangement of the units, it filed this petition when it was clear that such a prospect had been dashed. 10. All concede that there have been no major problems as a result of the addition of the fire and ambulance dispatch service. 11. A dispatcher has been the secretary/treasurer of the Local for the four years ending on June 1980. Sturtevant is currently a member of the negotiating team. 12. The job of Supervisor of Communications requires that Sturte- vant prepare the monthly schedule for dispatchers, which takes one half hour. She also must work those shifts which become va- cant because of vacation, sickness, or other contingencies. If each of the four dispatchers work a full 40 hour week, then Sturtevant would work alone for one ten hour shift, and would be with another dispatcher for thirty other hours. During all these times she performs routine dispatching duties. The occasion has never arisen in 16 months where Sturtevant has actually acted as department head, although she has been advised to do so in the event of the absence of Department Head Bruton. DECISION The City maintains that the dispatcher job has been evolving over the years to the point that now, with the creation of a separate department for communications and with the commensurate broadening of duties beyond the police field, the dis- patchers no longer have a community of interest with police employees. Moreover, the two groups will diverge even more as the services expand to other departments and to other towns, with the implementation of the new 911 service, and, conceiv- ably, with the relocation to a new facility apart from the police center. The City also contends that a case for separation exists by the very fact that dispatchers are not sworn police officers. Finally, the City argues that the ministerial police duties that the dispatchers perform are purely a matter of the practicalities of a small City and not an integral or permanent part of the dispatcher position. The Union contends that the City's reorganization has insufficient substance to warrant the modification of this historical bargaining unit. It argues that the community of interest is still extremely strong and that dispatchers are in bargaining units with sworn police officers all across the state. With respect to the Supervisor of Communications, the City contends that she should be in a separate unit whether the other dispatchers are considered to be in or out of the existing unit. The Union counters that she is merely a "working supervisor" with minimal supervisory duties who should remain in the unit with -3- ____________________________________________________________________________________ other dispatchers. I conclude that the dispatchers are still in the bargaining unit with the police department employees, primarily because the change that has taken place has been one of form with little substantive impact on the community of interest evident within this grouping of public employees. In addition, the Supervisor of Communications does not perform sufficient supervisory functions as established in 966(1) to be excluded from the unit which includes the dispatchers. I will therefore make an appropriate unit description modification to reflect the new cir- cumstances. I. I view unit clarification petitions within the framework of analysis set forth in Teamsters Local 48 and Town of Kittery, Unit Clarification Report (June 5, 1979). [No. 79-UC-08] "The main policy objectives involved in unit clarification are the same as in initial unit determinations: to insure to employees the fullest freedom in exercising their labor rights and a clear and identifiable community of interest which will foster employment peace and stability through collective bargaining. 26 M.R.S.A. 961; 966(2); see Kalamazoo Paper Box Corp., 136 NLRB 134, 137 (1962)." Kittery, supra, at page 6. The threshhold requirements of the petition are met here. First, there has been a sufficient change in circumstances related to the issue of unit determina- tion: a departmental reorganization by its nature raises this question. Second, it is at least arguable that the unit description would not include employees of a new Communications Department. Thus, this petition is a proper vehicle to determine this question. The inquiry is in three factual areas: the intent of the parties when the unit description was created; the course of conduct of the parties since the change in circumstances; and the traditional community of interest standards. See, Kittery, supra, at pages 7-8. It is not known when or how the current unit description was created or what the intent of the parties was at the time of its creation. The only evidence is the language itself: "the members of the Police Department. . ." This language was agreed on before the creation of the Communications Department. I conclude that the unit description cannot be read to automatically preclude the continued membership of the dispatchers solely because they have been placed into a new Department. It is only the substantive impact of the change which could give controlling meaning to this language. However, the new Department, while separate in theory, is merely a subdivision of the Police Department. It is under the same department head; it performs overwhelmingly the same functions in the same location. Under these circumstances, the language on its face cannot control the outcome. The second area is the course of conduct of the parties. No implication is evident here. The City has not acquiesced in the dispatchers' continued presence in the unit. The Union has also not dropped its claim of continued representation in the unit. -4- ____________________________________________________________________________________ The final area, community of interest, is a dominating factor since the facts indicate that there is still a strong community of interest and I conclude that it would ill serve the policies of stability and freedom to break up this group of employees. Among the factors itemized in Maine Teachers Association and Council No. 74, AFSCME , Unit Determination Report (Oct. 20, 1978) [78-UD-40], most of them point to a community of interest. There is a general similarity of work type, in that all deal with the world of emergencies and public protection. Indeed the Dispatcher's job is integrated with that of the police officers in that they communicate with each other constantly during the working day and have frequent other interchanges. They are subject to the common supervision of Police Chief Bruton. In addition, they work in the same general location, desire to remain in the same unit, and have a history of success- ful collective bargaining since at least 1976. While it is true that there are different qualifications, skill and training involved, it is nonetheless clear that an overall consideration dictates the con- clusion that the community of interest is strong. In essence, the drift apart that concerns the City is mostly theoretical at this point. Only the present circum- stances, however, can guide the hearing examiner. See, Waterville Police Department and Teamsters Local Union No. 48, Report of Appellate Review (Oct. 4, 1978) [78-A-06]. While it is possible that a sufficient community of interest may not remain after the Communications Department has taken on all the prospective responsibilities and after it has moved to a new facility, such a determination must wait until that time. For the moment, the separation is not yet significant.[fn]1 The City's second argument is simply not borne out by experience in this state. The nature of the sworn police officer's work is not in itself so different that they should be in a separate unit from dispatchers. Rather, dispatchers are included with police officers in many units throughout the state. E.g., Teamsters Local Union No. 48 and City of Biddeford, Unit Determination Report (Aug. 4, 1978) [78-UD-34]; Brunswick Police Communications Operations Association and the Town of Brunswick, Report of Appellate Review of Unit Determination Hearing (MLRB Jan. 17, 1977) [77-A-03]. This is only one of many factors to be considered in the overall judgment. The City's final argument also does not alter the conclusion. The management's motive in having dispatchers perform ministerial police work is immaterial to this issue. It is laudable that the City saves the expense of hiring additional police department employees. The fact is, however, that the performance of these functions tends to contribute to a working group community of interest between dispatchers and police officers, albeit to a minor degree. The City is not penalized by the result of this petition. Indeed, given the successful collective bargaining history over the last ten years, the City may very well save time and effort in the long run by having to negotiate only one contract rather than two. But at the bottom line, it is the fullest freedom of the employees to exercise labor rights within a grouping with common interests that is the key to labor stability. If this grouping were prematurely divided, that goal would be com- promised in this case. ____________________ 1. The public policy concerns expressed in AFSCME and City of Brewer, Unit Clarifi- cation (Feb. 15, 1979) [79-UC-04], are not evident in this case. -5- ____________________________________________________________________________________ The Supervisor of Communications is what is referred to as a "working supervisor." Teamsters Local Union No. 48 and Lewiston-Auburn Water Pollution Con- trol Authority, Unit Determination Report (Feb. 23, 1979) [79-UD-15]. She performs only a minimal amount of supervisory functions, i.e., scheduling. This involves less than one percent of her time. The remainder of the time she is simply a dispatcher with the added inconvenience of working as a fill-in when shifts are vacant. There is no question but that she should be in the same unit with the other dispatchers. CONCLUSION In summary, the determination is that the Supervisor of Communications and the Dispatcher positions continue to fall within the existing appropriate bargaining unit. Given the change in organizational structure and the creation of the new job title, the bargaining unit description is hereby modified from the form con- tained in Finding of Fact 1 to: "for the members of the Bath Police and Communications Department, with the exception of the Police Chief, Deputy Chief, Matron and Special Police." The caveat should be noted, however, that this unit is appropriate at this time but may be subject to future clarification depending on changes in circumstances which are now planned. Dated at Augusta, Maine, this 21st day of August, 1980. MAINE LABOR RELATIONS BOARD /s/_______________________________ Michael C. Ryan Hearing Examiner -6- ____________________________________________________________________________________