City of Augusta and Council 74 AFSCME, No. 81-UD-20, affirmed in part
and modified by 81-A-03.  Board decision affirmed by CV-81-477.

STATE OF MAINE                                  MAINE LABOR RELATIONS BOARD
                                                [Case Nos. 81-UD-20 & 81-E-01]
                                                [Issued:  June 2, 1981]
CITY OF AUGUSTA        )                                           
  and                  )            REPORT ON PETITION FOR ELECTION
                       )         AND REAFFIRMATION OF BARGAINING UNIT
EMPLOYEES              )
     The City of Augusta filed a Petition for Election on November 18, 1980.  In
the petition the City also requested re-examination of the bargaining unit, or
"Reaffirmation of Bargaining Unit," as the petition put it.  A hearing in the
matter was held on April 14, 1981 at the Bureau of Labor Conference Room, Seventh
Floor, State Office Building, Augusta, Maine, pursuant to the provisions of
Chapter 9-A, Title 26 M.R.S.A., Section 961, at seq. ("the Act").
     Present at the hearing for the City of Augusta ("City") were:

          Charles E. Moreshead, Esq.        Attorney for City of Augusta
          Paul G. Poulin                    City Manager, City of Augusta
          John G. Edgerly                   Treasurer, City of Augusta
          Madeline Cyr                      City Clerk, City of Augusta
     Council #74, American Federation of State, County and Municipal Employees
("Council #74") did not participate in the formal aspects of the hearing.[fn]1
     Also present was Robert I. Goldman in his capacity of Hearing Examiner, as
designated by the Executive Director of the Maine Labor Relations Board.
     The City filed its petition to test the validity of a bargaining unit of
"Augusta City Hall Employees" established in 1970, and whether Council #74 con-
tinues to represent a majority of employees in the unit.  By letter dated Decem-
ber 9, 1980 Council #74 requested dismissal of the petition contending that no
provision exists under the Act for an employer petition for an election, except
pursuant to an original claim for recognition.  To authorize such petitions would
encourage actions violative of Section 964(1)(C)[fn]2 of the Act.  The undersigned
on December 11, 1980 forwarded a letter suggesting legal precedent for an employer
petition at times other than when there is a claim for original recognition and
requesting further information from the parties.  Each of the parties responded.
The City responded with an affidavit by the City Manager stating that there had
never been a contract between the parties since the formation of the unit in 1970
and that in 1981 only one person remained of the 13 in the unit back in 1970.
Council #74 responded with an offer to proceed, by way of Unit Clarification proceed-

1.  John J. Ezhaya, Field Representative of Council #74, was present at the
    beginning of the hearing but did not participate and left the hearing
    room as a gesture to protect the legal position of Council #74, as stated
    by Mr. Exhaya.  An oral motion by Mr. Ezhaya for a continuance to further
    study the legal issue in the matter was denied.  The hearing proceeded with
    testimony from the City participants.

2.  Section 964 lists among public employer prohibitions,
        "C.  Dominating or interfering with the formation, existence or
             administration of any employee organization; . . ."


ings, to an election provided the City did not raise the 120 day notice provision of
the Act with respect to money issues.[fn]3  An informal meeting failed to resolve the
issues between the parties and a formal hearing was scheduled and held on April 14, 1981.
     The various items of correspondence and documents received from the parties
preliminary to the formal hearing are hereby incorporated in and made part of the
     Council #74 is a labor organization engaged in the business of organizing and
representing public employees for the purposes of collective bargaining and other
rights granted by the Act.  The City is a public employer as defined in Section
962(7) of the Act.  The jurisdiction of the Maine Labor Relations Board ("Board")
to hear this matter and make a determination lies in Sections 966 and 967.

                                  FINDINGS OF FACT
     Upon review of the entire record, the hearing examiner finds:
     1.  As the result of an election held on May 27, 1970 among employees of a
unit designated as "Augusta City Hall Employees" Council #74 was certified as the
bargaining representative for the employees in the unit.  The bargaining unit at
that time consisted of the following clerical and secretarial positions in the
respective departments listed:

            Clerk II                           Assessors
            Clerk-Typist I                     Assessors
            Bookkeeper                         City Auditor
            Clerk-Machine Op. I                City Auditor
            Clerk-Typist I                     City Clerk
            Clerk II) 3 positions              Treasurer-Tax Collector
            Clerk I )                          Treasurer-Tax Collector
            Nurse - 2 positions                Health & Welfare
            Clerk II                           Health & Welfare
3.  Section 965(1)(E) provides that when monetary items are included in bargaining
    requests the bargaining agent must serve notice on the employer at least 120
    days prior to the conclusion of the current fiscal operating budget.
4.  Included are:
      Employer's petition filed November 18, 1980.
      Letter dated December 9, 1980 from Mr. Ezhaya to Parker Denaco, Executive
       Director of the Board.
      Request for bargaining letter dated August 29, 1980 from Charles W. Sherburne,
       Executive Director, Council #74, to Paul Poulin, City Manager.
      Response to Mr. Sherburn from Mr. Moreshead, Attorney for the City, dated
       September 15, 1980.
      Letter from Mr. Ezhaya to Mr. Poulin requesting bargaining, dated November 10,
      Letter from Mr. Goldman to Mr. Moreshead and Mr. Ezhaya and attachment dated
       December 11, 1980.
      Affidavit of Mr. Poulin, received December 29, 1980.
      Letter from Mr. Ezhaya to Mr. Denaco dated December 29, 1980.
      Listing of positions provided by the City and accompanying letter from
       Mr. Poulin in response to letter of Mr. Goldman dated December 29, 1980.
      Letter of Mr. Goldman dated January 8, 1981 requesting certain personnel
       information and exchange of letters between Mr. Moreshead and Mr. Goldman
       dated January 19, 1981 and January 22, 1981, respectively.
      March 18, 1981 and March 25, 1981 notices of hearing from Mr. Goldman to
       the parties.

            Dispatcher/Clerk                   Public Works
            Clerk-Typist I                     Police
     The unit consisted of 13 employees.  Certain secretarial positions, such as
the Secretary to the City Manager and Secretary to the head of Public Works were
excluded.  The basis for the exclusion is unspecified, although presumably it
was based on "confidentiality."[fn]5  Department heads and deputy department heads
were also excluded.
     2.  By determination issued on April 29, 1970 by the Commissioner of the
Department of Labor and Industry[fn]6 school system clericals were excluded from the
unit based upon a finding that they were not employed by the City but rather by
the School Board.  That determination is incorporated herein by reference.
     3.  The bargaining unit of Augusta City Hall Employees as established in 1970
included all secretarial and clerical positions in the employ of the City of Augusta
other than those who were excluded by agreement of the parties, being those re-
ferred to in Paragraph 1 of the Findings of Fact, supra, or excluded by formal determ-
ination.  Althouth one other position, a Clerk-Steno position under "Planning & Building
Inspector," was listed in the General Government Salary Schedule for the year 1970,
the hearing examiner concludes that the position was not filled and there was no expec-
tation of its being filled at the time of the proceedings and election in 1970.
     4.  All of the positions in the unit in 1970 were physically located or operated
out of offices located in City Hall, except for the Public Works Dispatcher/Clerk
which was located at the Public Works garage in another part of town.
     5.  There is no evidence that after Council #74 was certified in 1970 any
negotiations over the terms and conditions of employment ever took place.  Further,
no collective bargaining agreement was ever consummated covering the employ-
ees in this unit.  No complaints or charges of any kind were ever filed with the
Board or its predecessor agency suggesting a failure of either party to respond
to a request for negotiations, or to otherwise meet the responsibilities imposed
on the parties by the collective bargaining laws.  Nor, prior to the filing of the
instant petition, has any correspondence been received by this agency from any source
whatever pertaining to this unit.

     6.  As of the date of the hearing on April 14, 1981, the following clerical,
secretarial and nursing positions existed in the departments which contributed to the
formation of the 1970 unit:

            Clerk                         Assessors
            Assistant to Assessor         Assessors
            Clerk/Machine Operator        City Auditor
            Bookkeeper                    City Auditor
            Clerk-Typist                  City Clerk
            Clerk-Cashier (2 positions)   Treasurer-Tax Collector
            Caseworker/Clerk              Health & Welfare
            Registered Nurse              Health & Welfare
            Licensed Practical Nurse      Health & Welfare
            Clerk                         Public Works

5.  See Section 962(6)(C) of the Act.

6.  At that time representation matters were within the jurisdiction of the
    Department of Labor and Industry.  In 1971 those functions were transferred
    to the Executive Director of the Board.  Chapter 609, Acts of 1971.

     Under Section 966(1) of the Act the Registered Nurse in Health & Welfare
cannot be included in a unit with non-professionals unless the incumbent opts
for inclusion.  At the time of the election in 1970 a request was made for
exclusion of the two nurses who were in the department at that time.  There is
no indication whether they were R.N.'s or L.P.N.'s.  The claim was disallowed
because it came too late in the proceeding.
     The City claims that the Public Works clerical is not the same position
included in the 1970 unit which was a Dispatcher/Clerk position, and in any event
the position appropriately should be assigned to the Public Works unit.  It is
noted that the Public Works unit specifically excludes "clerical" positions.
See additional finding infra, Paragraph 10, in the Findings of Fact.
     7.  Changes from the composition of 1970 unit among the positions listed in
Paragraph 7 are:
     In 1970 there were two Clerks in the Auditors office, whereas now there is one
Clerk and the Assistant to the Assessor.  Formerly there were three clericals in
the Treasurer/Tax Collector office and now there are two, one position having been
elevated to that of Deputy.  As noted, one of the Nurse positions cannot be in-
cluded except at the incumbent's option.  The Dispatcher/Clerk position in Public
Works no longer exists.  There is a new clerical position in that department which
the City contends should be included in the Public Works unit not a City Hall unit.
In 197O there was a Secretary to the Director of Public Works, which was an excluded
position.  That same position exists today.
     One clerical in the Police Department was included in the 1970 unit.  Today
there are no clerical positions.  There are currently several Dispatchers in the
Police Department.  The Dispatchers have their own separate bargaining unit.  The
former position of Secretary to the Police Chief - an excluded position - is now
Secretary to the Director of Public Safety.  Public Safety did not exist as a
separate department in 1970.  Under the standards applied in 1970 this Secretary
position would be excluded.
     8.  Other changes in the organizational structure of City Hall and in City
government which affect the attempt to formulate the scope and composition of a
unit described as "Augusta City Hall Employees" are:
     There are now Meter Maids[fn]7 who are attached to the Police Department and are
not now in any bargaining unit.  The Meter Maids wear uniforms.
     There are now two Secretaries in the City Manager's office whereas in 1970
there was one and that position was excluded, presumably as a confidential employee
pursuant to Section 962(6)(C) of the Act.  The City claims that both are subject to
the exclusion.
     There are several departments or offices which did not exist in 1970 and which
have clerical or secretarial positions attached to them.  These include Engineering
which employs a Draftswoman/Clerk; Community Development which has a Secretary and

7.  The record does not indicate whether this is the formal title or an informal

a Housing Rehab Counsellor; and Recreation which has a Clerk-Typist and Surveyor
position.  In any unit consideration at least one of these positions - the
Surveyor - would have to be reviewed concerning possible exclusion.  The Community
Development office is directly under the City Manager's office and it is headed
by an Assistant to the City Manager.  The City contends the Assistant is a depart-
ment head and excludable from a clerical and secretarial unit under the 1970
     There is a Central Computer office under a department head.  This office did
not exist in 1970.  Presently this office utilizes Audit personnel but it is ex-
pected that some of the Auditors staff will be transferred to Computer Control at
some future date.
     9.  The Augusta Civic Center is a new facility since the 1970 proceedings.
The City claims this facility is wholly independent of City Hall and is self-
sustaining.  There are 9 full-time employees at the Civic Center, two of whom are
clericals.  Although not paid with general municipal funds, the employees at the
Center are paid with City checks and enjoy a number of benefits enjoyed by other
City personnel.  Thus, a question arises whether any bargaining unit of general
scope should include employees at the Civic Center.
    10.  The operating employees of the Police and Fire Departments were organ-
ized for collective bargaining purposes and represented by designated bargain-
ing representatives prior to 1970.  The Public Works Department was organized
in 1971.  Currently the following City bargaining units exist (excepting the one
which is the subject of this proceeding):
                   Uniformed Members of the Fire Department
                   Patrolpersons of the Police Department
                   Dispatchers of the Police Department
                   Sergeants and Lieutenants, Police Department
                   Public Works Department employees, excluding
                    supervisory, clerical and seasonal employees.
     There are School Department units, including a teaching unit and a clerical
unit.  The School Board is the public employer of School Department personnel, not
the City.
     The conclusion is inescapable that there have been basic changes in City
government which affect the bargaining unit described as "Augusta City Hall
Employees" since the unit was created in 1970.  There are departments attached to
City Hall which did not exist in 1970 and these departments have clerical or secre-
tarial positions which would logically fall within the scope of the 1970 unit.
There are positions in pre-existing departments which are new, such as Caseworker/
Clerk in Health & Welfare, and these positions would logically fall within the
scope of such a unit.  There are Deputy Director positions which did not exist in
1970 and there is a question whether some of these positions should be examined
in any unit structuring, including the consideration of the community of interest
standard of the Act.  Titles and positions associated with the old unit have changed.
Some positions in the old unit have been phased out or altered, e.g., the Dispatcher/
Clerk position in Public Works.  There is a question whether certain positions are
professional in nature and ought to be provided with the option of inclusion as the

Act provides.  There is a fundamental question whether certain secretarial positions
excluded in 1970, such as secretaries to certain department heads, are properly
excluded.  In that regard the question of confidentiality related to labor relations
should be examined with some care, since employees should not be denied benefits
and rights under the Act arbitrarily.  Should a City-wide clerical (or administra-
tive) unit encompass the personnel at the Civic Center?  What about the Meter Maids?
And, the secretary and clerical located at Public Works?
     The foregoing merely dramatizes the obvious.  The unit established in 1970 for
collective bargaining purposes under circumstances then pertaining is hardly valid
given the current municipal organizational and structural realities.  The old unit
is no longer viable.  Furthermore a unit appropriate for bargaining under the Act
should not be formulated without the knowledgeable insights and contribution of
parties on either side of the bargaining equation.  To conclude that the 1970 unit
is no longer viable or current is one thing; to establish an acceptable, intelli-
gently formulated unit appropriate under the Act is another.
     There is nothing in the Act that prohibits a party from raising the bona fides
of a bargaining unit in these circumstances.  This is particularly true given the
fact that the unit has lain dormant for more than 10 years.  Where there is an on-
going collective bargaining relationship, there is the continuing opportunity to
review the unit itself.  This review goes on all the time and is most often accom-
plished by the parties without the intercession of a labor board or other outside
agent.  The give and take of negotiations is the leavening agent of collective
bargaining, even as it pertains to unit questions.  It cannot be presumed that a unit
will remain interminably dormant and subject to instant resuscitation where there
has been a prolonged neglect of the very process for which it was established.  That
is unrealistic and not in accord with the law.[fn]8  The hearing examiner finds, therefore,
that the bargaining unit as it existed in 1970 is no longer viable or appropriate for
collective bargaining under the Act.  The public employer has the right to raise the
issue and have it determined.[fn]9

8.  Council #74's objections to the proceedings are predicated upon an assumption
    that its original certification can be challenged only via the decertification
    procedures specified in Section 967(2).  This does not appear to be the case.
    In the private sector where there is good faith doubt of majority status, the
    National Labor Relations Board allows challenge by an employer.  See NLRB v.
    Burns Int'l. Security Services 406 U.S. 272, 80 LRRM 2225 (1972) and U.S. Gyp-
    sum Company and United Steel Workers of America, AFL-CIO, 157 NLRB 652, 656
    (1966).  Furthermore the NLRB has acknowledged that even during the certifi-
    cation year "unusual circumstances" may lead to challenge of majority status.
    "Unusual circumstances" include dissolution of the certified union, Public
    Serv. Elec. & Gas Co., 59 NLRB 325, 15 LRRM 152 (1944), and where the certi-
    fied union has disclaimed interest in the unit, WTUP, Inc., 114 NLRB 1236, 37
    LRRM 1143 (1955).  It would appear that dormancy of a unit for 10 years, whether
    intentional or unintentional, would constitute an effective disclaimer or an
    "unusual circumstance."  This Board has also indicated that it would follow
    the U.S. Gypsum rule.  See, e.g., Bangor and Local 1599, International Assn.
    of Firefighters, MLRB Report of Appellate Review of Unit Determination (July 18,
    1980) fn 3 [80-A-03].  Since the representation question is properly raised it follows
    that the unit question is open for review as well.
9.  Council #74 has suggested that the petition be treated as one for Unit Clari-
    fication.  But Unit Clarification is premised upon the lack of a question
    concerning representation and there is clearly a representation question in the
    instant case.  See Section 966(3) of the Act.  As to the form employed, the
    Employer's Petition for Election is adequate to raise the issues in the matter.

     Having found the old unit no longer appropriate, it seems to be the better
judgment to forego defining what might be an appropriate unit at this time.  Such
determination is better made in the context of an organizational and representation
attempt where the benefit of differing views and sources of information might come
into play.
     Based upon the foregoing the hearing examiner finds that a unit described as
"Augusta City Hall Employees" and composed of the positions listed in Paragraph 1
of the Findings of Fact is no longer appropriate for the purposes of collective
bargaining under the Act.  SO ORDERED.
     This determination should not be viewed as a certification or attempted cer-
tification and therefore does not constitute a time bar to a representation pe-
tition involving an appropriate unit consisting of positions discussed herein.
Since the former unit has been found no longer viable and no other unit has been
formulated, it is unnecessary to act on the employer's request for an election.
Dated at Augusta, Maine, this 2nd day of June, 1981.
                                          MAINE LABOR RELATIONS BOARD
                                          Robert I. Goldman
                                          Hearing Examiner