Auburn Firefighters and City of Auburn, No. 83-UD-15, amended and affirmed in part by 83-A-07 (MLRB Dec. 5, 1983) STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case No. 83-UD-15] _______________________ ) AUBURN FIREFIGHTERS ) ASSOCIATION, LOCAL ) 797, IAFF ) and ) UNIT DETERMINATION REPORT ) CITY OF AUBURN ) _______________________) This is a unit determination proceeding, initiated on January 28, 1983 when the Auburn Firefighters Association, Local 797, IAFF (Local 797) petitioned pur- suant to 26 M.R.S.A. Section 966 for a bargaining unit determination. A hearing on the petition was held on March 10, 1983 in Augusta, Maine. Local 797 was repre- sented by Peter M. Garcia, Esq. and the City of Auburn (City) by Curtis Webber, Esq.[fn]1 Local 797 seeks by its petition formation of a bargaining unit composed of the 9-1-1 Dispatchers employed by the City. The City opposes the proposed bargain- ing unit on the grounds that 1) the petition is barred by the one-year certifica- tion bar set forth in 26 M.R.S.A. Section 967(2), 2) the City is not the employer of the Dispatchers, and 3) in any event, the proposed unit would not be appropriate for purposes of collective bargaining. Gilles M. Lessard, the 9-1-1 Supervisor, was presented as a witness by both Local 797 and the City. Local 797 also presented 9-1-1 Dispatcher Constance Lyons as a witness. The following exhibits were admitted into the record: City Exhibit No. 1 Agreement between the Cities of Lewiston and Auburn creating the 9-1-1 Committee City Exhibit No. 2 Job Description for the 9-1-1 Dispatchers City Exhibit No. 3 1982 Annual Activity Report, Lewiston Auburn 9-1-1 System __________ 1/ Prior to the hearing, the City moved to disqualify Attorney Garcia from representing Local 797 in this case on conflict of interest grounds, alleging that the firm in which he is a member also represents the City of Lewiston in labor relations matters. The hearing examiner denied the motion, finding that while Lewiston might have some indirect interest in the case, its interest certainly is not so direct or apparent as to warrant disqualifi- cation of counsel. [-1-] ____________________________________________________________________________________ Both parties filed post-hearing briefs, which have been considered by the hear- ing examiner. JURISDICTION Local 797 is a public employee organization within the meaning of 26 M.R.S.A. Section 967(1). The City 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 determination lies in 26 M.R.S.A. Section 966(1). FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. On November 12, 1982 the undersigned hearing examiner issued a Unit Clari- fication Report involving Local 797 and the Lewiston-Auburn 9-1-1 Committee. This report resulted from a unit clarification petition and a petition for election filed by Local 797 in September, 1982. The Report denied Local 797's petition 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 de- cided 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 dis- patchers employed at the 9-1-1 center, he was unable "to determine whether a bar- gaining unit of just the Auburn dispatchers or a unit of all the unrepresented dis- patchers 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 incorporated herein by reference. 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 consists of seven members, including the Police and Fire Chiefs of both Lewiston and Auburn. The Conniittee sets the rules and regulations for operation -2- ____________________________________________________________________________________ of the 9-1-1 center, which is located in Lewiston's central fire station. Vari- ous subcommittees of the Committee are responsible for such matters as purchasing new equipment for the center. The Committee makes an annual report to and sub- mits its budget to both Cities, each of which pays 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 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 Lewis- ton. 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 dispat- chers are employed and paid by the City of Lewiston and, being Lewiston firefighters, are members of Lewiston's firefighters' bargaining unit. Their wages and fringe benefits are established through collective bargaining and are different 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 Novem- ber 12, 1982 Unit Clarification Report, each dispatcher usually handles only those calls involving his/her employer, i.e., Lewiston dispatchers 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 recommend 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 -3- ___________________________________________________________________________________ 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. DECISION At issue is the question whether a bargaining unit of the Auburn Dispatchers is an appropriate unit for purposes of collective bargaining. The hearing examiner determines that such a unit is appropriate and will order formation of a bargain- ing unit composed of all 9-1-1 Dispatchers employed by the City of Auburn. A representation election for this unit will also be ordered. The City's first objection to the proposed unit is that the unit petition is barred by the "certification bar" rule set forth in 26 M.R.S.A. Section 967(2): "No question concerning representation may be raised within one year of certification or attempted certification." The City points out that in September, 1982 Local 797 filed a unit clarification petition and an election petition, and urges that these petitions constituted an "attempted certification" which bars the representation petitions at issue in this case. The unit petition was denied and the election petition dismissed without an election in the November 12, 1982 Unit Clarification Report. The City's argument is incorrect because the language "certification or attempted certification" in Section 967(2) refers to Labor Relations Board certi- fication of the results of a representation election, and no representation elec- tion was ever held as a result of the petitions filed by Local 797 in September, 1982. Under the analogous provision in the National Labor Relations Act, 29 U.S. C.A. Section 159(c)(3), it is clear that a representation election, not a bargain- ing unit proceeding, is the event which triggers the one-year certification bar. See, e.g., Catholic Community Services, 254 NLRB 763 n.2 (1981); B.F. Goodrich Chemical Co., 84 NLRB 429, 430 (1949). Multiple representation petitions for the same employees may be filed during a year's time, provided that no election is held during the year. See, e.g., Catholic Community Services, 254 NLRB at 763 n.2; Wagner Electric Corp., 53 NLRB 543, 544 (1943). Moreover, if the City's position was correct a union or an employer could bar an election forever simply by filing a unit clarification petition every year, a result which the Legislature surely did not intend when it enacted Section 967(2). Since a representation election -4- ____________________________________________________________________________________ has never been conducted for the Auburn 9-1-1 Dispatchers, the Section 967(2) cer- tification bar is not applicable in this case and the hearing examiner may consider Local 797's current representation petitions. The City's next contention is that Local 797's petitions are defective because they name the wrong employer. The City urges that the hearing examiner found in the November 1982 Unit Clarification Report that the 9-1-1 Committee and not the City of Auburn was the employer of the Auburn 9-1-1 Dispatchers. It is true that the hearing examiner, when comparing the community of interest between the Auburn Dispatchers and the Auburn firefighters, stated: "Second, the two groups have different employers - the dispatchers are employed by the Committee while the firefighters are employed by Auburn." In light of the clear and convincing evidence in the present case that the City of Auburn employs the Auburn 9-1-1 Dispatchers, however, the hearing examiner must conclude that he erred in the earlier report by finding that the 9-1-1 Committee employs the Dispatchers. 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 Dispatchers 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 Committee 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 concludes that the City of Auburn is the employer of the Auburn 9-1-1 Dispatchers and that Local 797 therefore named the correct employer in its petitions. Finally, the City argues that a bargaining unit of the Auburn 9-1-1 Dispatchers would not be appropriate for purposes of collective bargaining, urging that a unit of the Auburn 9-1-1 Dispatchers and the Lewiston 9-1-1 Dispatchers would be a more appropriate unit.[fn]2 The problem with this argument is that the Lewiston Dispatchers are Lewiston firefighters who have been members of the Lewiston firefighters bar- gaining unit for years, and no case has been made as to why they should be removed __________ 2/ The medical 9-1-1 dispatchers are employed by a private company and therefore may well not be subject to the Labor Relations Board's jurisdiction. See 26 M.R.S.A. Section 962(7). -5- ____________________________________________________________________________________ from their present unit. The hearing examiner therefore concludes that it would not be appropriate to remove the Lewiston Dispatchers from their bargaining unit and place them in a unit with the Auburn Dispatchers. On the other hand, the hearing examiner finds that a bargaining unit of the Auburn 9-1-1 Dispatchers is appro- priate for purposes of bargaining; the Auburn Dispatchers are public employees who share a clear and identifiable community of interest. 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: 1. The bargaining unit is composed of all 9-1-1 Dispatchers employed by the City of Auburn. 2. The Executive Director or his designee should conduct a representation election for the bargaining unit as soon as possible. Dated at Augusta, Maine, this 19th day of April, 1983. 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. -6- ____________________________________________________________________________________