Local 797, IAFF and Lewiston-Auburn 9-1-1 Committee, Nos. 83-UC-06 and 83-E-01, Affirmed in part, reversed in part, 83-A-03 (MLRB Dec. 5, 1983) STATE OF MAINE MAINE LABOR RELATIONS BOARD [Nos. 83-UC-06 and 83-E-01] ____________________________ ) LOCAL 797, INTERNATIONAL ) ASSOCIATION OF FIREFIGHTERS ) ) and ) UNIT CLARIFICATION REPORT ) LEWISTON-AUBURN 9-1-1 ) COMMITTEE ) ____________________________) This is a unit clarification proceeding, initiated on September 24, 1982 when Local 797 of the International Association of Firefighters (Local 797) filed a petition for unit clarification pursuant to 26 M.R.S.A. Section 966(3) and a petition for an election pursuant to 26 M.R.S.A. Section 967(2). A hear- ing on the petitions was held on October 21, 1982 in Augusta, Maine. Local 797 was represented by Peter M. Garcia, Esq., and the Lewiston-Auburn 9-1-1 Committee (Committee) was represented by G. Curtis Webber, Esq. Local 797 seeks by its unit clarification petition inclusion of four dis- patchers employed by the Committee in an existing bargaining unit composed of the members of the Auburn Fire Department. In the alternative, if it is deter- mined that the dispatchers should not be included in the existing unit, Local 797 seeks an election for a bargaining unit composed of the four dispatchers. The Committee opposes the petitions on the ground that the dispatchers do not share a clear and identifiable community of interest with the members of the bargaining unit, and urges that the only appropriate unit is all twelve dispatchers employed by the Committee. Local 797 presented the following witnesses: Clifton S. Smith Chief, Auburn Fire Department David P. Biron Dispatcher, 9-1-1 Committee Paul J. Blanchard Past President, Local 797 Wayne Werts Current President, Local 797 Presented as witnesses by the Committee were: Clifton S. Smith Chief, Auburn Fire Department Gilles M. Lessard Supervisor, 9-1-1 Committee [-1-] ___________________________________________________________________________________ The following documents were admitted into the record as exhibits: Firefighters Exhibit No. 1 The 1980-82 collective bargaining agreement between Local 797 and the City of Auburn Firefighters Exhibit No. 2 Pay stubs of 4 of the 9-1-1 Committee Dispatchers Committee Exhibit No. 1 Agreement between the Cities of Lewis- ton and Auburn creating the 9-1-1 Committee Committee Exhibit No. 2 Organizational chart for the 9-1-1 Committee and job descriptions of the 9-1-1 Supervisor and Dispatchers Committee Exhibit No. 3 Job requirements of the 9-1-1 Dis- patchers JURISDICTION Local 797 is a public employee organization within the meaning of 26 M.R.S.A. Section 967(1). The Lewiston-Auburn 9-1-1 Committee, an administrative agency of the Cities of Lewiston and Auburn, is a public employer as defined in 26 M.R.S.A. Section 962(7). The jurisdiction of the hearing examiner to hear this case and rule on the petition for unit clarification lies in 26 M.R.S.A. Section 966(1). FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. Prior to the summer of 1979, the dispatchers for the Auburn Fire Depart- ment were uniformed firefighters who worked at the Central Fire Station in Auburn. These dispatchers were members of the Auburn firefighters bargaining unit repre- sented by Local 797. 2. In April, 1978, the Cities of Lewiston and Auburn entered into an agreement 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 main- tain a 9-1-1 emergency reporting communications system for the Lewiston-Auburn area. The Committee is administered by a board of seven members, including the Police and Fire Chiefs of both Lewiston and Auburn. The Committee makes an annual -2- ___________________________________________________________________________________ report to and submits its budget to both Cities, each of which pays 50% of the Com- mittee's expenses. 3. In June, 1979 the City of Auburn hired four civilian dispatchers to work at the 9-1-1 center which is in the Lewiston Central Fire Station. The City of Lewiston assigned four of its firefighters to be 9-1-1 dispatchers, and these four dispatchers have remained in the Lewiston firefighters bargaining unit. In addi- tion, four medical dispatchers were hired to work in the 9-1-1 center, and these dispatchers apparently are not in any bargaining unit. A 9-1-1 supervisor also was hired to supervise the operation of the 9-1-1 center. 4. Unlike all Auburn firefighters, the new Auburn dispatchers were not hired through the Auburn civil service system, and they were not required to take the written and physical tests which applicants for Auburn firefighter positions have to pass. The new Auburn dispatchers were trained by the Auburn firefighter dis- patchers at the Auburn Fire Station for several months, after which time the new dispatchers moved to the 9-1-1 center at the Lewiston Fire Station while the fire- fighter dispatchers apparently returned to their firefighting positions. 5. All twelve dispatchers take and route calls for the Fire Departments, Police Departments and ambulance services in Lewiston and Auburn. One Auburn dis- patcher, one Lewiston dispatcher and one medical dispatcher usually are on duty at any given time at the 9-1-1 center. The Auburn dispatcher will pass calls from Lewiston on to the Lewiston dispatcher if he/she is available and will pass all medical calls on to the medical dispatcher if he is available. In the event that the appropriate dispatcher is unavailable, then the Auburn dispatcher will handle the call himself. All Auburn calls similarly are passed on to the Auburn dispatcher on duty if he/she is available. The Auburn dispatchers route all police calls to the dispatchers at the Auburn Police Department, who then handle the call. As for fire calls, however, the Auburn dispatchers actually dispatch the firefighters and the equipment necessary to handle the situation. This of course requires that the dispatchers be extremely familiar with Fire Department standard operating procedure, with the capabilities of the various pieces of Fire Depart- ment equipment and apparatus, and with the streets and the buildings in Auburn. The dispatchers' role of dispatching fire calls makes them an important part of the firefighting team in Auburn. The Auburn dispatchers also dispatch Lewiston fire calls when the Lewiston dispatcher is unavailable, which of course requires that they be familiar with Lewiston fire equipment as well as the geography of -3- ___________________________________________________________________________________ Lewiston. The Auburn dispatchers also dispatch medical calls when the medical dispatcher is not available. 6. The Auburn dispatchers are paid by the City of Auburn, and they pick their paychecks up at the Auburn Fire Station. The Auburn dispatchers are under the super- vision of and are disciplined by both the 9-1-1 supervisor and the Auburn Fire Chief. The Auburn dispatchers are paid approximately $229.00 a week, while a pri- vate in the Auburn Fire Department with comparable seniority currently makes about $253.00 per week. Both the Auburn dispatchers and the firefighters average a 42-hour workweek, although the firefighters work shifts during four consecutive days and nights followed by four days off, while the dispatchers, due to the high stress associated with their job, work only two consecutive days or nights before having two days off. 7. In April, 1980, Local 797 and the City of Auburn entered into a collective bargaining agreement with a term of April 1, 1980 to March 31, 1982. The recognition clause of this agreement expressly excludes the 9-1-1 civilian dispatchers from the firefighters' bargaining unit. However, in a "sideletter" attached to the agree- ment the parties provided that the contract could be reopened "for the purpose of including Dispatchers in the current contract" subject to the condition, among others, that the dispatchers "must be included in the bargaining unit as certified by the Maine Labor Relations Board." Local 797 agreed to the recognition clause because it was not certain at the time as to what the 9-1-1 dispatchers working conditions were going to be. The City was opposed to including the dispatchers in the bargaining unit. A successor agreement was executed by the parties in April, 1982, and the recognition clause of this agreement likewise expressly excludes the civilian dispatchers from the bargaining unit. Although a "sideletter" also is attached to this agreement, it makes no reference to the possibility of includ- ing the dispatchers in the unit. DECISION At issue is the question whether the four Auburn dispatchers at the 9-1-1 center should be included in the Auburn firefighters' bargaining unit. After care- fully considering the facts, the hearing examiner concludes that the dispatchers should not be included in the unit because they do not share a sufficient community of interest with the firefighters and because clarification of the unit would be -4- ___________________________________________________________________________________ contrary to the traditional criteria used for clarifying bargaining units. The hearing examiner accordingly will deny Local 797's unit clarification petition. Since the hearing examiner also cannot determine whether a unit composed only of the Auburn dispatchers would be appropriate, the petition for election will be dismissed. It is undoubtedly true, as Local 797 contends, that the 9-1-1 dispatchers play a very important role in the providing of fire fighting services for the City of Auburn; the dispatchers have the initial and often critical responsibility of insuring that the right equipment gets to the right place as fast as possible when a fire occurs. Although the Auburn 9-1-1 dispatchers clearly are more in- timately involved with the operation of the Auburn Fire Department than with any of the other departments under the 9-1-1 system, it bears noting that the dis- patchers also handle fire calls from Lewiston as well as police and emergency medical calls from both Lewiston and Auburn. Their responsibilities therefore are far broader than merely dispatching Auburn Fire Department calls. It is also true that prior to the advent of the 9-1-1 system the Auburn dis- patchers were included in the Auburn firefighters bargaining unit. These dispat- chers were Auburn firefighters, however, who worked in the Auburn Central Fire Station. In contrast, the present dispatchers are civilians working out of the central fire station in Lewiston with significantly greater responsibilities than the previous firefighter dispatchers. It has of course been the Labor Rela- tion Board's practice to exclude, on community of interest grounds, civilian dis- patchers from bargaining units of uniformed personnel. See, e.g., AFSCME, Pine Tree Council No. 74 and City of Brewer, MLRB No. 79-A-01 (Oct. 12, 1979). Finally, Local 797 correctly notes that the Lewiston 9-1-1 dispatchers are included in the Lewiston firefighters bargaining unit. Again, however, the Lewiston dispatchers are Lewiston firefighters who have been assigned to the 9-1-1 system, and it seems likely that these dispatchers continue to share a clear and identifiable community of in- terest with the Lewiston firefighters. The traditional criteria examined in determining community of interest questions are set forth in the AFSCME, Pine Tree Council No. 74 case, -5- ___________________________________________________________________________________ supra.[fn]1 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 previously noted, the dispatchers are civilians while the firefighters 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 dispatchers do not share a clear and identifiable community 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). Moreover, even if the two groups did share a clear and identifiable community of interest, the propriety of clarifying the existing unit would be highly question- able in light of the language of Rule 1.13 of the Labor Relation Board's Rules and Procedures: "Unit clarification petitions may be denied if (a) the description of the job categories contained in the bargaining unit is clear and unequivocal, (b) the question raised should be properly settled through the election process, or (c) the petition attempts to modify the com- position of the bargaining unit as negotiated by the parties and the alleged changes therein have been made prior to negotiations on the collective bargaining agreement presently in force." _________ 1/ These criteria include such factors as: "(1) similarity in the kind of work performed; (2) common supervision and determination of labor-relations policy; (3) similarity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarity in the qualifications, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographical proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organiza- tional structures." AFSCME, Pine Tree Council No. 74 at 3-4. -6- ___________________________________________________________________________________ While all three of these reasons for denying a unit clarification petition may be present in this case, reason (c) plainly is applicable. The facts are that two collective bargaining agreements have been negotiated since the 9-1-1 system was implemented, and both agreements expressly excluded the 9-1-1 dispatchers from the bargaining unit. While the sideletter attached to the 1980-82 agreement left open the possibility of including the dispatchers in the unit, the current agreement makes no such provision. Since the parties clearly have negotiated a bargaining unit which excludes the 9-1-1 dispatchers, the hearing examiner could not properly change the negotiated agreement by ordering that the dispatchers be included in the unit. The only remaining question is whether a bargaining unit composed solely of the four Auburn 9-1-1 dispatchers is appropriate for purposes of collective bargain- ing within the meaning of 26 M.R.S.A. Section 966. Local 797 has filed a petition for election for such a bargaining unit, in the event that it was decided that the four dispatchers should not be included in the firefighters' unit. On the basis of the record before him, the hearing examiner must conclude that a unit of four dispatchers would not be appropriate. This is because there apparently are four medical dispatchers employed at the 9-1-1 center, and the appropriate unit would appear to be one composed of all eight 9-1-1 dispatchers presently not represented (the four Lewiston 9-1-1 dispatchers being already included in the Lewiston fire- fighters' bargaining unit). On the other hand, it is possible that a good reason exists why the medical 9-1-1 dispatchers should not be included in a unit with the Auburn 9-1-1 dispatchers. Since the record contains no evidence at all with regard to the medical dispatchers, the hearing examiner is 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 in a bargaining unit of the Auburn 9-1-1 dispatchers accordingly must be dismissed. Such dismissal of course does not prejudice the right of Local 797 or any other labor organiza- tion to file a unit determination petition for a bargaining unit of 9-1-1 dispatchers, at which time evidence can be offered as to the appropriate bargaining unit. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted by 26 M.R.S.A. Section 966, it is ORDERED -7- _________________________________________________________________________________________ that Local 797's unit clarification petition is denied and its election petition is dismissed. Dated at Augusta, Maine this 12th day of November, 1982. MAINE LABOR RELATIONS BOARD /s/_____________________________________ Wayne W. Whitney, Jr. Hearing Examiner The parties are advised of their right pursuant to 26 M.R.S.A. Section 968(4) to appeal this report to the full Labor Relations Board, by filing a notice of appeal with the Board within 15 days of receipt of the report. -8- _________________________________________________________________________________________