Auburn Firefighters and City of Auburn, No. 83-A-07, amending in part and affirming 
in part 83-UD-15 
 


 STATE OF MAINE                                       MAINE LABOR RELATIQNS BOARD
                                                      CASE NO. 83-A-07
                                                      ISSUED:  December 5, 1983
 
 
 
 
 
 ______________________
                       )
 AUBURN FIREFIGHTERS   )
 ASSOCIATION, LOCAL    )
 797, IAFF             )
                       )                 REPORT OF APPELLATE REVIEW
  and                  )                OF UNIT DETERMINATION REPORT
                       )
 CITY OF AUBURN        )
 ______________________)
        
      This is an appeal of a unit determination report, filed pursuant to 26 M.R.S.A.
 Section 963(4) on April 28, 1983 by the City of Auburn ("Appellant''). The unit de-
 termination report, dated April 19, 1983 and which is the subject of this appeal,
 held that the dispatchers, who alert and direct Auburn firefighting vehicles and
 personnel to the scene of emergencies from a work site at the Lewiston Central Fire
 Station, are employees of the City of Auburn and, together, constitute an appro-
 priate unit for the purpose of collective bargaining.  In this appeal, the Appellant
 has argued:  (1) the petitions, which gave rise to the unit determination hearing
 below, should be barred by Local 797's failure to make the Lewiston-Auburn 9-1-1
 Committee a party thereto and (2) the bargaining unit created by the hearing ex-
 aminer is inappropriate for collective bargaining purposes.
 
      The parties waived the right to present evidence at a hearing on this matter,
 submitted a stipulation of facts on appeal, and filed their arguments in written
 briefs, which have been duly considered by the Board.  The Appellant was represented
 by G. Curtis Webber, Esq., and the Auburn Firefighters Association, Local 797,
 IAFF (''Union'') was represented by Peter M. Garcia, Esq.
 
       
                                   JURISDICTION
 
 
            The City of Auburn is an aggrieved party within the context of 26 M.R.S.A.
 Section 968(4).  The Auburn Firefighters Association, Local 797, IAFF, is a
 public employee labor organization within the meaning of 26 M.R.S.A. Section 962(2).
 The jurisdiction of the Maine Labor Relations Board (''Board'') to consider this
 appeal and render a decision and order lies in 26 M.R.S.A. Section 968(4).

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                              FINDINGS OF FACT

      Upon review of the entire record, the Board adopts, as its findings of
 fact, the findings of fact made by the hearing examiner and the parties'
 stipulation of facts on appeal, as follows:
 
      1.  On November 12, 1982 the undersigned hearing examiner issued a Unit
 Clarification Report involving Local 797 and the Lewiston-Auburn 9-1-1 Comittee.
 This report resulted from a unit clarification petition and a petition for elec-
 tion filed by Local 797 in September, 1982.  The Report denied Local 797's pe-
 tition to include four 9-1-1 Dispatchers in an existing bargaining unit composed
 of the members of the Auburn Fire Department on the grounds that the civilian
 dispatchers did not share a clear and identifiable community of interest with the
 uniformed firefighters and that clarification of the bargaining unit would be
 contrary to the Labor Relations Board's unit clarification standards in any event.
 The hearing examiner also decided not to order formation of a unit of the four
 City of Auburn 9-1-1 Dispatchers because, as the record contained no evidence with
 regard to the four medical dispatchers employed at the 9-1-1 center, he was unable
 ''to determine whether a bargaining unit of just the Auburn dispatchers or a unit
 of all the unrepresented dispatchers is appropriate."  Local 797's petition for
 an election for a unit of Auburn 9-1-1 Dispatchers accordingly was dismissed.
 All the findings and conclusions in this Unit Clarification Report are hereby in-
 corporated herein by reference.
 
      2.  In April 1978 the Cities of Lewiston and Auburn entered into an agree-
 ment which created an administrative agency of both Cities called the "Lewiston-
 Auburn 9-1-1 Committee."  The purpose of the Committee is to establish, operate,
 and maintain a 9-1-1 emergency reporting communications system for the Lewiston-
 Auburn area.  The Committee consists of seven members, including the Police and
 Fire Chiefs of both Lewiston and Auburn.  The Committee sets the rules and regu-
 lations for operation of the 9-1-1 center, which is located in Lewiston's central
 fire station.  Various subcommittees of the Committee are responsible for such
 matters as purchasing new equipment for the center.  The Committee makes an annual
 report to and submits its budget to both Cities, each of which pay 50% of the
 Committee's expenses.
 
      3.  The 9-1-1 Supervisor, a former City of Lewiston firefighter, is respon-
 sible for the day-to-day operation of the 9-1-1 center.  He performs such duties

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 as supervising and evaluating the dispatchers, training new dispatchers, and
 preparing the budget and the annual report.  About one-third of his salary is
 paid by the 9-1-1 Committee and the remaining two-thirds is paid by the City of
 Lewiston.  The 9-1-1 Supervisor is the only employee paid by the 9-1-1 Committee.
 
      4.  Twelve dispatchers are employed at the 9-1-1 center.  Four of the dis-
 patchers are employed and paid by the City of Lewiston and, being Lewiston fire-
 fighters, are members of Lewiston's firefighters' bargaining unit. Their wages
 and fringe benefits are established through collective bargaining and are differ-
 ent than the wages and benefits of the other dispatchers.  Another four dispatchers
 are employed by Tri-County Emergency Medical Services, a private company which
 sets and pays the wages and benefits of its dispatchers.  The remaining four
 dispatchers (the ''Auburn Dispatchers") are employed by the City of Auburn.  Their
 wages and benefits, which are different than those received by the Lewiston or
 the medical dispatchers, are set and paid by Auburn.  Neither the 9-1-1 Committee
 nor the 9-1-1 Supervisor have any say in the wages and benefits received by the
 9-1-1 dispatchers.  Three dispatchers - a Lewiston dispatcher, a medical dispatcher,
 and an Auburn dispatcher - are on duty at any given time.  As set forth in Finding
 of Fact No. 5 in the November 12, 1982 Unit Clarification Report, each dispatcher
 usually handles only those calls involving his/her employer, i.e., Lewiston dis-
 patchers handle Lewiston police and fire calls, the medical dispatchers handle the
 medical calls, and the Auburn dispatchers handle the Auburn calls.
 
      5.  The four Auburn Dispatchers were hired by the Auburn Fire Chief in 1979.
 The Dispatchers are paid with City of Auburn paychecks which they pick up at the
 central fire station in Auburn.  The 9-1-1 Supervisor can recomend discipline
 for the Auburn Dispatchers but final disciplinary authority, including the authority
 to suspend a Dispatcher or withhold pay resides in the Auburn Fire Chief.  (The
 authority to discipline the Lewiston dispatchers and the medical dispatchers also
 rests with their respective employers).  Insurance coverage and all other fringe
 benefits for the Auburn Dispatchers are provided by the City of Auburn.  The
 Auburn Dispatchers' personnel records are kept at the central fire station in
 Auburn.
 
      6.  At the hearing on the unit clarification and election petitions dated
 September 23, 1982, the union contended that the "Auburn'' dispatchers were
 employees of the City of Auburn and not of the 9-1-1 Committee.  The City of
 Auburn argued that these dispatchers were the employees of the 9-1-1 Committee.

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      7.  The Union took an appeal from the hearing examiner's unit clarification
 report of November 12, 1982.  A hearing on said appeal was held on October 5,
 1983 and the Board's resolution thereof is contained in Local 797, International
 Association of Firefighters and Lewiston-Auburn 9-1-1 Committee, MLRB No. 83-A-03.
 
      8.  While on duty at the 9-1-1 headquarters in the Lewiston Fire Station,
 the activities of the 9-1-1 dispatchers are coordinated by the 9-1-1 supervisor.
 He has developed rules for coordination of operations and the administration
 of the 9-1-1 center.  The protocol, the procedure by which the Auburn Fire Dis-
 patchers dispatch Auburn Fire apparatus, and the language used in that activity,
 was drawn up by the Auburn Fire Department and is from time-to-time amended by
 orders of the Chief of the Auburn Fire Department.
 
      9.  The 9-1-1 supervisor coordinates employee vacations, sick leave requests
 and vacation swaps.
 
      10.  The 9-1-1 supervisor orally warns or cautions the Auburn dispatchers
 with respect to minor offenses but refers more serious matters, with or without
 recommendation for action, to the Fire Chief.
       
     11.  The four Auburn dispatchers were hired by the Auburn Fire Chief after
 being interviewed by a committee of which the 9-1-1 supervisor was a member.
 No vacancies have occurred since the original four Auburn dispatchers were hired.
 
 
                                   DECISION
        
      The Appellant City of Auburn has argued that the hearing examiner erred and
 that the unit determination report below should be rejected.  As we have repeatedly
 stated in the past, the appropriate standard of review used to evaluate the hear-
 ing examiner's actions is as follows:
 
      ''We will overturn a hearing examiner's rulings and determinations
       if they are 'unlawful, unreasonable, or lacking in any rational
       factual basis.' ''                                                            -
 
 City of Bath and Council 74, AFSCME, MLRB No. 81-A-01, at 6 (Dec. 15, 1980).  The
 Appellant's appeal centers upon two main contentions:  (1) the failure to make the
 Lewiston-Auburn 9-1-1 Committee a party to the unit determination proceeding should
 have barred the Union's petitions and (2) the bargaining unit created by the hearing
 examiner is not appropriate for collecting bargaining purposes.  We will examine the

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 hearing examiner's holding in light of these averments and applying the foregoing
 standard of review.
 
      The Appellant has argued two sub-contentions in support of its first contention.
 The first sub-contention is that, by unit clarification report dated November 12,
 1982, the hearing examiner held that the Auburn dispatchers were employed by the
 Lewiston-Auburn 9-1-1 Committee and the doctrine of collateral estoppel should
 have been a bar to the unit determination hearing.  In Local 797, International
 Association of Firefighters and Lewiston-Auburn 9-1-1 Committee, Unit Clarification
 Report, at 6 (Nov. 12, 1982), the hearing examiner stated:
 
      "Second, the two groups have different employers - the dispatchers
       are employed by the Committee while the firefighters are employed
       by Auburn.''
 
       This finding by the hearing examiner clearly was not final agency action by the
 Board.  Said finding has been directly challenged, through the procedure authorized
 in 26 M.R.S.A. Section 968(4), and has been rejected by this Board.  In Local 797
 International Association of Firefighters and Lewiston-Auburn 9-1-1 Committee,
 MLRB No. 83-A-03, at 5, we held that the above-quoted finding of fact was lacking in
 any rational factual basis and, therefore, was reversed.  The doctrine of collateral
 estoppel does not, therefore, apply in this case.  Secondly, the doctrine of col-
 lateral estoppel is an equitable doctrine which should not be blindly and inflexibly
 applied.  A review of the unit clarification report relied-upon by the Appellant
 clearly indicates that the finding that the 9-1-1 Committee is the dispatchers'
 employer was not the focus of the hearing examiner's investigation, was made within
 the community of interest context, and was a "make-weight" finding in that context.
 The hearing examiner, first, outlined eleven illustrative criteria promulgated by
 this Board to be used in evaluating community of interest questions, within the
 meaning of 26 M.R.S.A. Section 966(2), and, then, proceded to apply said factors
 to the unit clarification investigation.  The hearing examiner stated:
 
           "The traditional criteria examined in determining community of
       interest questions are set forth in the AFSCME, Pine Tree Council
       No. 74 case, [MLRB No. 79-A-01 (Oct. 12, 1979)].  As Local 797
       contends, there are some similarities in the work performed by the
       dispatchers and the firefighters - for example, the dispatchers
       are in part engaged in Fire Department work, are supervised in part
       by the Auburn Fire Chief, and are paid by the City of Auburn.  In
       examining the entire record, however, the hearing examiner believes
       that the differences far outweigh the similarities.  First, as pre-
       viously noted, the dispatchers are civilians while the firefighters

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       are uniformed personnel, which means that the qualifications,
       skills and training of the two groups of employees are different.
       Second, the two groups have different employers - the dispatchers
       are employed by the Committee while the firefighters are employed
       by Auburn.  Finally, the dispatchers are subject to the day-to-day
       supervision of the 9-1-1 supervisor, the pay scale for the two groups
       of employees is different, the employees work in different locations,
       and, in the opinion of the hearing examiner, there is little contact
       or interchange between the two groups.  All of these factors taken
       together establish, in the hearing examiner's judgment, that the dis-
       patchers do not share a clear and identifiable connunity of interest
       with the firefighters and that the two groups should not be included
       in the same bargaining unit.  See, e.g., AFSCME, Pine Tree Council
       No. 74, supra; City of Bath and Local 1828, Council 74 AFSCME, MLRB
       No. 81-A-01 (Dec. 15, 1980)."
 
 Local 797, International Association of Firefighters and Lewiston-Auburn 9-1-1
 Committee, Unit Clarification Report, at 5-6 (Nov. 12, 1982).  Read in context,
 it becomes clear that the finding, that the 9-1-1 Committee was the dispatchers'
 employer,was made in the comunity of interest context and was not the focus of
 the hearing examiner's investigation.  A finding of a different public employer
 for two groups of public employees would, in almost every case, require a
 separate bargaining unit for each group and would foreclose all further inquiry
 in the unit clarification context.  The fact that the hearing examiner discussed
 all of the relevant comunity of interest factors illustrates that the finding
 concerning the 9-1-1 Committee was a ''make-weight" argument and does not signify
 the type of full litigation of the issue required for application of the doctrine
 of collateral estoppel.
 
      The Appellant's second sub-contention, in support of its argument that the
 failure to make the 9-1-1 Committee a party to the unit determination proceeding
 should have barred the Union's petitions, is that the dispatchers are employed
 by the 9-1-1 Committee and not by the City of Auburn.  The unit determination
 report states, in relevant part:
 
     "The evidence shows that the City hired the Dispatchers, sets and
      pays all of their wages and fringe benefits, and is the custodian
      of their personnel records. In addition, the Auburn Fire Chief
      has the final authority in disciplinary matters involving the Auburn
      Dispatchers.  In contrast, the 9-1-1 Committee did not hire the Dis-
      patchers and has nothing to do with the wages and fringe benefits they
      receive.  Given this uncontradicted evidence, most of which was testi-
      fied to by the 9-1-1 Supervisor, it is clear that while the 9-1-1 Com-
      mittee is in full charge of operating the 9-1-1 center, it is not the
      employer of the Auburn 9-1-1 Dispatchers.  The hearing examiner con-
      cludes that the City of Auburn is the employer of the Auburn 9-1-1

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      Dispatchers and that Local 797 therefore named the correct
      employer in its petitions.''
       
 Auburn Firefighters Association, Local 797, IAFF and City of Auburn, Unit Determ-
 ination Report, at 5 (Apr. 19, 1983). We have reviewed the entire record in this
 matter and we hold that the hearing examiner's conclusion that the City of Auburn
 is the Auburn dispatchers' employer is supported by substantial evidence, includ-
 ing that cited above, and, therefore, we must affirm the same.
 
      Secondly, the Appellant, throughout this portion of its argument, refers to
 and relies upon the provisions of the April 3, 1978 Inter-Local Agreement which
 created the 9-1-1 Comittee.  For example, at page 7 of its Memorandum of Law the
 Appellant argues:
 
           "It was never made clear how the practice developed of having
       the Auburn dispatchers paid directly by the City. Nothing in the
       inter-local agreement suggests that such an arrangement was contem-
       plated.  The 9-1-1 agency has ample authority to hire its own em-
       ployees, establish and pay their wages, and obtain reimbursement
       through the annual contributions made by each city.  One can only
       surmise that the cities backed into the present payment arrange-
       ment which has subsequently been permitted to continue by the agency
       as long as no one complained.''
 
       The Appellant is arguing that the 9-1-1 Committee has the authority to act as
 the dispatchers' employer.  We have repeatedly rejected arguments, in the unit
 determination or unit clarification context, which were based upon the intention
 or ability to treat or to utilize employees in certain ways in the future.
 
 M.S.A.D. No. 14 and East Grand Teachers Ass'n., MLRB No. 83-A-09, at 9 (Aug. 24,
 1983).  Like the hearing examiner below, this Board focuses its appellate re-
 views of unit decisions on actual and past circumstances and views future inten-
 tions and capabilities as being too speculative in nature to serve as justifi-
 cation therefor.  Furthermore, the above statement is factually incorrect to
 the extent that the Lewiston dispatchers are employed by the City of Lewiston,
 are members of the Lewiston firefighters bargaining unit, and negotiate their wages,
 hours, and terms and conditions of employment with the City of Lewiston.
 
      Finally, the evidence before the hearing examiner clearly demonstrated that each
 group:  the Auburn dispatchers, the Lewiston dispatchers, and the four ambulance
 dispatchers; has the same relationship with the 9-1-1 Committee as do the other
 two.  As we have noted above, the Lewiston dispatchers are employees of the City
 of Lewiston and engage in collective bargaining with that City over the mandatory

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 subjects of bargaining.  At page 6 of its Memorandum of Law, the Appellant states
 that the ambulance dispatchers are the employees of Tri-County Emergency Medical
 Services, a private company.  By analogy, therefore, the Auburn dispatchers must
 be employees of the City of Auburn.  For all of the foregoing reasons, we must con-
 clude that the hearing examiner did not err in determining that the City of Auburn
 is the public employer, within the meaning of 26 M.R.S.A. Section 962(7), of the
 Auburn dispatchers and we affirm said conclusion.
 
      The Appellant's final argument is that the hearing examiner erred because
 the bargaining unit created by the unit determination report is not appropriate for
 collective bargaining purposes.  The sole argument proffered by the City in sup-
 port of this argument is that the 9-1-1 Comittee, not the City of Auburn, is the
 dispatchers' employer.  We have already upheld the hearing examiner's conclusion
 that the City of Auburn is the Auburn 9-1-1 dispatchers' employer, within the
 meaning of 26 M.R.S.A. Section 962(7), therefore, we need not address this issue
 further.  We do, however, note the controlling legal principle in this context.
 In Town of Yarmouth and Teamsters Local Union No. 143, MLRB No. 80-A-04, at 4
 (June 16, 1980), we stated:
 
           ''The Town misconceives the nature of the hearing examiner's
      responsibilities under 26 M.R.S.A.  966.  As the hearing examiner
      correctly stated, it is his duty to determine whether the unit
      proposed by the petitioner is an appropriate one, not whether the
      proposed unit is the most appropriate unit.  In this determination
      the hearing examiner has broad discretion, particularly in deciding
      community of interest questions.  See, e.g., AFSCME, Pine Tree Council
      No. 714 and City of Brewer, Case No. 79-A-01 at 3-4 (Oct. 13, 1979)."
 
       We have reviewed the entire record in this proceeding and, as a result thereof,
 we hold that the bargaining unit, consisting of the four Auburn 9-1-1 dispatchers
 as determined by the hearing examiner, is appropriate for the purpose of collective
 bargaining and, therefore, we affirm the unit determination report below.
 
 
                                    ORDER
        
      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. Section 968(4), it is ORDERED:
 
      1.  The hearing examiner's findings of fact, contained in the Unit

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          Determination Report of April 19, 1983, be and hereby
          are amended by adding thereto paragraphs numbered 6
          through 11 of the findings of fact herein.
 
      2.  That the balance of the Unit Determination Appeal, filed
          by the City of Auburn, on April 28, 1983, be and hereby
          is denied.
        
      3.  The hearing examiner's decision of April 19, 1983, in all
          respects other than that mentioned in paragraph 1 of this
          Order, be and hereby is affirmed.
 
      
 Dated at Augusta, Maine, this 5th day of December, 1983.
       
        
                                MAINE LABOR RELATIONS BOARD
       
       
       
                                /s/___________________________________
                                Edward H. Keith
                                Chairman
                                                        
       
       
                                /s/___________________________________
                                Thacher E. Turner
                                Employer Representative
       
       
       
                                /s/___________________________________
                                Harold S. Noddin
                                Employee Representative
       
       
              
      The parties are advised of their right, pursuant to Title 26 M.R.S.A.
 Sections 968(4) and 972, to seek review of this decision by the Superior Court
 by filing a complaint in accordance with Rule 80B of the Rules of Civil Pro-
 cedure within 30 days of the date of this decision.
       
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