Teamsters and City of Saco, No. 83-UC-12, Affirmed by 83-A-08 (MLRB July 18, 1983) STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case No. 83-UC-12] ______________________________ ) TEAMSTERS LOCAL UNION NO. 48 ) ) and ) UNIT CLARIFICATION REPORT ) CITY OF SACO ) ______________________________) This is a unit clarification proceeding initiated on March 24, 1983, when Walter J. Stilphen, Jr., a representative of Teamsters Local Union No. 48, filed a petition for bargaining unit clarification, pursuant to 26 M.R.S.A. Section 966(3). A hearing on the petition was held by the undersigned hearing examiner for the Maine Labor Relations Board on April 26, 1983, in Augusta, Maine. Teamsters Local Union No. 48 ("Union") was represented by its Secretary/Treasurer, Walter J. Stilphen, Jr., and the City of Saco ("Employer") was represented by Robert D. Curley, labor relations consultant. The Union seeks by its petition, to include the newly-created job classifi- cations of Secretary in the Office of Comunity Development and Secretary in the Economic Development Department in an existing Clerical and Maintenance Bargain- ing Unit in the City of Saco. The Employer objects to the inclusion of said classi- fications into the bargaining unit on the grounds that neither is a public "employee" position, within the ambit of 26 M.R.S.A. Section 962(6). At the hearing, neither party presented any witnesses nor any exhibits. The record was kept open for ten (10) days to allow the parties to file relevant docu- ments and post-hearing briefs. The following two exhibits were submitted, by mail, after the hearing. Employer's Exhibit No. 1 Letter from Randall 3. Parenteau, Saco Community Development Director, dated April 26, 1983 and addressed to the undersigned hearing examiner. Employers Exhibit No. 2 Memorandum of Agreement, between City of Saco and Theodore C. Dydo wicz, Saco Economic Development Director, Dated August 20, 1982. [-1-] ____________________________________________________________________________________ JURISDICTION Teamsters Local Union No. 48 is the certified bargaining agent, as defined in 26 M.R.S.A. Section 962(2), for the Clerical and Maintenance Bargaining Unit in the City of Saco. The City of Saco is a public employer, as defined in 26 M.R.S.A. Section 962(7). The jurisdiction of the hearing examiner to hear this matter and rule on the petition for unit clarification lies in 26 M.R.S.A. Section 966(3). FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. Teamsters Local Union No. 48 is the certified bargaining agent, as de- fined in 26 M.R.S.A. Section 962(2), for the Clerical and Maintenance Bargaining Unit in the City of Saco. 2. The City of Saco is a public employer, as defined in 26 M.R.S.A. Section 962(7). 3. The parties have stipulated that, but for the allegation that they are not "public employees," under 26 M.R.S.A. Section 962(6), the Secretary in the Office of Community Development and the Secretary of the Economic Development Department. in the City of Saco, share a clear and identifiable community of interest with the employees who are included in the Clerical and Maintenance Bargaining Unit in the City of Saco. 4. The parties have stipulated that both of the positions, at issue herein and which are mentioned in paragraph 3 hereof, were created subsequent to the nego- tiations for the current collective bargaining agreement between the parties for the Clerical and Maintenance Bargaining Unit. 5. The Office of Community Development, in the City of Saco, is not a sepa- rate city department, but rather is part of the City Administrator's Office. 6. The Office of Community Development is presently operating under a grant received in 1981. Funding for the third and final year of said program is due to expire in July, 1984, unless a subsequent grant is received. There is no assurance that future funding will be received. -2- ____________________________________________________________________________________ 7. Staff for the Office of Community Development, including the Secretary classification at issue herein, are hired knowing that their employment is for the grant period and that, if subsequent funding is not received, their positions will be eliminated. 8. The Economic Development Director for the City of Saco, under a Memo- randum of Agreement dated August 20, 1982, "[f]or purposes of State and Federal income tax and Social Security, . . . shall be considered and classified as an employee. For all other purposes, the Director shall be considered and classi- fied as an independent contractor." 9. The same agreement, mentioned in paragraph 8 hereof, provides, in para- graph 2 thereof, as follows: "The City shall provide the Director with an office and a secretary to assist him in carrying out his duties. City shall also provide a telephone and office equipment and supplies as may be required as de- termined by the City. The Director will provide his own transportation and will be paid for expenses and mileage incurred outside of the City limits, subject to review and approval by the City." 10. The Secretary in the Office of Conmiunity Development and the Secretary of the Economic Development Department are both public employees, within the defini- tion of 26 M.R.S.A. Section 962(6). 11. The parties are unable to agree on appropriate modifications to the exist- ing bargaining unit. 12. There is no question concerning representation in this proceeding. DECISION The Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. Sec- tion 961, et seq., in Section 966(3) states as follows: "Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the forma- tion of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, any public employer or any recognized or certified bargaining agent may file a petition for a unit clarification pro- vided that the parties are unable to agree on appropriate modifi- cations and there is no question concerning representation." -3- ____________________________________________________________________________________ Under said Statute, the following prerequisites must be met to establish the Board's jurisdiction to hear and consider unit clarification proceedings: (1) there must be a currently recognized or certified bargaining agent, (2) there must be an existing bargaining unit, (3) the public employer or the recognized or certified bargaining agent, for the aforementioned bargaining unit, must be the petitioner, (4) the parties must be unable to agree on appropriate modifica- tions to the unit at issue, and (5) there must be no question concerning repre- sentation involved in the matter. Paragraphs numbered 1, 11, and 12 of the foregoing findings of fact establish that said five prerequisites have been met in this matter. A threshhold issue for the granting of a unit clarification petition is a finding that "the circumstances surrounding the formation of an existing bargain- ing unit" have "changed sufficiently to warrant modification in the composition of that bargaining unit." The fact that the positions at issue herein have been recently created satisfies the "sufficient change" requirement and the hearing examiner so holds. Finally, as a preliminary matter, Rule 1.13 of the Board's Rules and Proced- ures, states: "Unit clarification petitions may be denied if . . . the petition attempts to modify the composition of the bargaining unit as ne- gotiated by the parties and the alleged changes therein have been made prior to negotiations on the collective bargaining agreement presently in force." This Rule presents no problem, in the instant case, since the positions in contro- versy were created subsequent to the negotiations which resulted in the current col- lective bargaining agreement between the parties and relating to the Saco Clerical and Maintenance Bargaining Unit. The only issue in this proceeding is whether the Secretary in the Office of Community Development and the Secretary in the Economic Development Department are "public employees," under Section 962(6) of the Act. The Employer argues that the Community Development Secretary is not a public employee because she is a "Temporary" employee. The following expresses the long-standing definition of "public employee" used by the Board in this context: "Respondent has alleged that persons performing supervisory duties in the extra-curricular activities program might be exempt from coverage under the Public Employees Labor Relations Act because -4- ____________________________________________________________________________________ of the 'temporary' nature of their employment and the resulting exemption pursuant to 962, 6, Sub- 6, of the Act. We can readily discount the fact that the employees performing these services are 'temporary' because there is no showing that they are merely substituting for another supervisor of extra-curricular activities. Respondent's brief indicates that the extra-curricular activities are reviewed on a year-to-year basis and alleges that this annual review means that the supervisory positions are 'temporary' in nature. We cannot agree with this contention as the Public Employ- ees Labor Relations Act [ 962, 6, Sub- F] has already established an outside limit of six months after which an employee is considered to be covered by the provisions of the Act. When a public employee has been employed for six months or more we consider that he is then eligible for coverage under the Act and that his employment status has been for a sufficiently long duration so that his job is no longer considered 'temporary' in nature. To hold otherwise, would create a situation where any employee could be denied coverage under the Act merely by designating his job as 'temporary' and we do not believe that such a designation of a job category is consistent with the purposes set forth in 961 and 963 of the Act, respectively." Waterville Teachers Association v. Waterville Board of Education, P.E.L.R.B. Case No. 75-22, pp. 3-4 (June 26, 1975). In this case, the mere fact that the Employer considers the Community Development Secretary to be a "temporary" position and that said job classification may be terminated in July, 1984, over one year from the date hereof, is not dispositive. Clearly said position is, within the meaning of Section 962(6)(G), not a 'temporary' one. The hearing examiner holds the Secretary in the Office of Community Development, in the City of Saco, is a public employee within the ambit of the Act. Since this position shares a clear and identifiable cormiunity of interest with the other employees in the Saco Clerical and Maintenance Bargaining Unit, said classification will be included in said unit. The Employer objects to inclusion of the Secretary in the Economic Develop- ment Department, into the Saco Clerical and Maintenance Bargaining Unit, on the grounds that said employee is an independent contractor and, therefore, not a "public employee" under Section 962(6) of the Act. The evidence in the record does not establish that said classification is an independent contractor. The position of Economic Development Director, which is not at issue in the instant action, may or may not, in the labor relations context, be an independent contrac- tor, however, his "Memorandum of Agreement" does not establish the status of Economic Development Secretary. Said Agreement, Exhibit 2 herein, merely states that the Employer will provide the Director with a secretary. Since said Secretary is hired by the Employer and paid with public revenues by the Employer, said position is a -5- ____________________________________________________________________________________ "public employee' under Section 962(6) of the Act and the hearing examiner so holds. The Secretary of the Economic Development Department shares a clear and identifiable community of interest with the other employees in the Saco Clerical and Maintenance Bargaining Unit and will, therefore, be included in said unit. The Clerical and Maintenance Bargaining unit in the City of Saco, as modi- fied hereby by the inclusion therein of the Secretary in the Office of Community Development and the Secretary of the Economic Development Department job classi- fications, is appropriate for purposes of collective bargaining. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted in 26 M.R.S.A. Section 966(1) and (3), it is ORDERED: 1. The Petition for Unit Clarification filed by Teamsters Local Union No. 48, on March 24, 1983, be and hereby is granted. 2. The description of the existing Clerical and Maintenance Bar- gaining Unit in the City of Saco be and hereby is modified to include, in addition to all other positions presently in said unit: Secretary in Office of Community Development Secretary in Economic Development Dated at Augusta, Maine, this 24th day of May, 1983. MAINE LABOR RELATIONS BOARD /s/________________________ Marc P. Ayotte 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. -6- ____________________________________________________________________________________