Augusta Uniformed Firefighters Assoc., Local 1650, IAFF and City of Augusta,
Board Decision No. 85-A-02, reversing Hearing Examiner's Decision in 85-UC-02. 

                                          Case No. 85-A-02
                                          Issued:  February 21, 1985

FIGHTERS, AFL-CIO                )
                                 )      REPORT OF APPELLATE REVIEW OF
             and                 )        UNIT CLARIFICATION REPORT
CITY OF AUGUSTA                  )

     This is an appeal of a Unit Clarification Report issued on
December 12, 1984 by a hearing examiner for the Maine Labor Relations
Board ("Board").  The report of the hearing examiner issued after
hearing on the petition of the Augusta Uniformed Firefighters
Association, Local 1650, International Association of Firefighters,
AFL-CIO ("Union") to clarify whether the position of Platoon Chief
should be in the bargaining unit with regular Firefighters.  The peti-
tion was filed pursuant to Section 966(3) of the Municipal Public
Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq.
("Act").  The hearing examiner, after overcoming the City's procedural
or jurisdictional objections, found that the Platoon Chiefs shared a
sufficient community of interest with the Firefighters to include them
in the same bargaining unit.  The City timely appealed that deter-
mination and a hearing on the appeal was held on January 24, 1985,
Alternate Chair William M. Houston presiding, with Employer
Representative Linda D. McGill, Esq., and Employee Representative
Russell A. Webb.  The City was represented by Charles E. Moreshead,
Esq., and the Union by Martin S. Hayden, Esq.  Testimony of witnesses
was permitted at the appeal hearing solely for the purpose of
clarifying evidence received before the hearing examiner.  The parties
waived post-hearing briefs and made oral argument at the conclusion
of the proceedings.
     The jurisdiction of the Board to hear and decide the matter and
render a decision and order lies in 26 M.R.S.A.  968(4).


     Appearing as witnesses at the appellate hearing were:
          Norman Arbour                Platoon Chief 
          Richard D. Griffin           Director of Public Safety
                           FINDINGS OF FACT
     Upon review of the entire record, the Board makes the following
findings of fact:
     1.  The Petitioner, Augusta Uniformed Firefighters Association,
Local 1650, International Association of Firefighters, AFL-CIO, is the
certified bargaining agent, within the definition of 26 M.R.S.A.
Section 962(2), of a bargaining unit composed of the uniformed members
of the Augusta Fire Bureau, "excepting only the Director of Public
Safety and Chief Officers."
     2.  The City of Augusta is the public employer, within the
meaning of 26 M.R.S.A, Section 962(7), of the employees whose job
classifications are included in the above-mentioned unit and of the
Platoon Chiefs.
     3.  The Platoon Chiefs are public employees, as defined in
Section 962(6) of the Act.
     4.  There is no question concerning representation raised in this
     5.  Currently the Fire Bureau is under the command of the
Director of Public Safety.  The rest of the chain-of-command, in order
of rank, is a follows:  Deputy Fire Chief, Platoon Chief, Captain,
Lieutenant, Sergeant and Private.  The labor relations policies for
the Platoon Chiefs, as well as for all of the other Fire Bureau
employees, are determined by the Director of Public Safety and by the
collective bargaining agreement between the Employer and the Union.
     6.  During 1978, the Augusta Fire and Police Departments were
placed, as separate bureaus, into a unified Public Safety Department,
under the command of a Director of Public Safety.  At the same time,
the Fire Bureau was reorganized and, through attrition, the positions
of Battalion Chief and Captain were eliminated.  The position of

Platoon Chief was created during this reorganization.
     7.  The Battalion Chiefs had never been included in the
bargaining unit, described in paragraph 1 above, while the Captain
position had always been included in the unit.
         The table of organization of the department has always
included the position of Sergeant, as has the recognition clause of
the collective bargaining agreement, but this position has never been
         The salary scale negotiated in the collective bargaining
agreements over the years, including the scale in the current
agreement, has always included a wage level for the Captain and
Sergeant positions.
     8.  Since the creation of the position, during negotiations or
otherwise, the union has never sought to clarify the recognition
clause with regard to the position of Platoon Chief, nor has it ever
sought to negotiate the wage level for this position.
         The City has consistently asserted the view that the Platoon
Chief position is within the definition of "Chief Officers" and thus
excluded from the bargaining unit.
     9.  In the past, the officer positions in the bargaining unit -
Captains and Lieutenant - have always assumed leadership positions in
the union and have regularly served on the union negotiating team.
         Since creation of the Platoon Chief position, incumbents of
that position have never served as officers of the Union, nor have
they served on its negotiating teams.  The position has never been
included in the salary scale of any collective bargaining agreement.
The salary for the position is not negotiated at the bargaining table,
but rather is set by the City Council when other general government
salaries are voted upon, although it has generally "tracked" the nego-
tiated scale.  The Platoon Chiefs have not been under a misconception
that their salary level is determined by the collective bargaining
process rather than by Council action.
    10.  The 1967 and 1968 collective bargaining agreements between
the parties exempted "the Fire Chief and Deputy" from the uniformed

firefighters' bargaining unit.  The 1969, 1970-1971, 1973, 1974-1975,
1976, 1977-1978, 1979-1981, and 1982 collective bargaining agreements
between the parties excluded "the Fire Chief and Chief Officers" from
the bargaining unit.  The 1983-1984 agreement, however, exempted "the
Director of Public Safety and Chief Officers," which was a change
included among the City's demands during negotiations.
    11.  The work performed by the Platoon Chiefs includes directing
firefighting operations at the fire scene, assigning inspection work,
and supervising the care of equipment and living quarters at the fire
station.  The Platoon Chiefs also engage in firefighting activities
and in building inspections.  Their principal function at the scene of
a fire is to supervise and organize the firefighting activities.
         In general, the principal functions of the Platoon Chiefs are
characterized by the performance of such management control functions
as assigning, overseeing, and reviewing the work of subordinate
employees and otherwise performing supervisory functions.  The posi-
tion of Platoon Chief is a supervisory position as that term is
defined in the Act.
    12.  The Platoon Chiefs, like the other employees in the relevant
unit, receive a weekly salary, based on a 54-hour work week, and are
eligible for overtime pay.  When first created, the Platoon Chiefs
received a rate lower than the Captain rate.  In subsequent years the
rate was the same as the contract rate specified for the Captain posi-
tion.  At present the rate for Platoon Chief is somewhat higher than
that negotiated for the Captain position.
    13.  The Platoon Chiefs receive all of the benefits outlined in
the collective bargaining agreement for the relevant unit, work the
same hours as the unit employees, and, like said employees, reside at
the fire station while on duty.  The Battalion Chiefs worked different
shifts from the unit employees, but also resided in the stations when
on duty.
         Advancement within bargaining unit positions is controlled by
the bidding and seniority provisions of the collective bargaining
agreement, whereas the position of Platoon Chief is within the appoint-

ive power of the City and not so controlled.
    14.  The Platoon Chiefs possess the same basic qualifications as
the unit employees; however, they have greater skill and training,
commensurate with their higher rank and greater experience.
    15.  The Platoon Chiefs are in constant contact with the unit
employees and there is a good deal of interchange between them in
that, when the Platoon Chiefs are absent, they are replaced by
    16.  The incumbent Platoon Chiefs have expressed the desire to be
included in the current Uniformed Firefighters bargaining unit.
    17.  As bargaining unit members, the Lieutenants have not
experienced problems or conflicts in performing their supervisory
    18.  Platoon Chiefs attend Union meetings and have discussed
collective bargaining proposals, concerning wages and benefits, with
members of the Union bargaining team.

    19.  The proposed job description for the position of Platoon
Chief is in many ways identical with that for the Fire Captain classi-
fication.  Of the eight "Examples of Work" listed in the former docu-
ment, five were taken almost verbatim from the latter.  Eight of the
ten "Requirements of Work" in the Platoon Chief's draft job descrip-
tion are essentially identical with those listed in the Fire Captain
specification.  The position has been described in testimony as being
a combination of the Battalion Chief and Captain positions.
    20.  There are four employees in the Platoon Chief classification
and three Lieutenants.

                       DISCUSSION AND DECISION

     Among its objections[fn]1 the City has claimed that the petition
of the Union is barred by Rule 1.13, Unit Clarification, of the
Board's Rules and Procedures.  We must therefore first dispose of this
objection before we can proceed with any consideration of the
substance the of Union's petition.  Rule 1.13(A) provides in relevent
part that a petition for unit clarification may be denied if "(a) the
description of the job categories contained in the bargaining unit is
clear and unequivocal . . . or (c) if the petition attempts to modify
the composition 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."
     The essential portion of the facts related above which touch on
the procedural objection raised by the City are these:  In 1978 the
City reorganized its public safety apparatus by abolishing the then
separate Police and Fire departments and creating a unified Department
of Public Safety under the head of a Director of Public Safety.  The
positions of Chief in each of the old departments were abandoned and
the former Chiefs became Deputy Chiefs in newly constituted bureaus
under the Department of Public Safety.  Simultaneously, the positions
of Battalion Chief and Captain in the Fire Department (now Fire
Bureau) were phased out and the position of Platoon Chief was created.
Whereas prior to the 1983-1984 collective bargaining agreement the
exception clause of the agreements between the parties excluded "the

   1 The Issues on Appeal filed by the City raised the following
    "1.  That the hearing examiner erred by not granting the
         City's Motion to Dismiss the petition because of the
         language in the collective bargaining agreement which
         excluded from the bargaining unit the Director of Public
         Safety and Chief Officers.
     2.  That the hearing examiner erred by including the Platoon
         Chief classification in the Augusta uniformed
         Firefighters bargaining unit."

Fire Chief and Chief Officers," at the request of the City the
language of exclusion was changed in the 1983-1984 agreement to, "the
Director of Public Safety and Chief Officers."  The City contends that
since Platoon Chiefs are "Chief Officers, then it follows the position
is excluded from the bargaining unit by definition.  The Union on the
other hand takes the position that the term "Chief Officers" was
negotiated into the agreement at a time when the Battalion Chief posi-
tion existed and it was intended to cover that position or positions
at that level and above.  It claims that "Platoon Chiefs" are in
reality "captains" under another guise and consequently should be
included in the bargaining unit.
     The facts as adduced on the record lead us to the conclusion that
the Union has failed to overcome the threshold obstacle of Rule
1.13(A) sub-paragraph (c) and we must therefore dismiss the petition.
The facts show that the Union is aware that the Platoon Chief salary
level is an item established not by the negotiations process, but
rather is set by the City Council along with the salary of other
general government (non-unionized) employees.  Similarly whereas
opportunity for advancement within the bargaining unit is subject to
the seniority clause of the collective bargaining agreement the posi-
tion of Platoon Chief is not, but rather it is an appointive position
free of the contract posting and seniority requirements.  In addition,
the Union has never sought to include the salary of the Platoon Chiefs
in the contract salary scale or to list the position in the agreement,
even though it continues to negotiate the rate for the dormant posi-
tions of Captain and Sergeant.  It is also of some interest that the
City successfully negotiated a change in the exclusion provision of
the Recognition Clause by substituting "Director of Public Safety"
for "Fire Chief," while on the other hand the evidence shows that the
Union, for reasons unexplained, failed to raise the matter of the
Platoon Chiefs' uncertainty at any of the intervening negotiations
since the creation of the position, or indeed at any other time.  In
light of the fact that the Union has known that the pay rate for the
Platoon Chief position has been adopted independently of the contract
settlement and that the position is not subject to the bidding and

seniority provisions of the collective agreement, it is unreasonable
to assume that the Union was misled by management, or that the Union
leadership maturely believed the position was a re-creation of the
abandoned Captain position with merely a new title.  The facts are
that the City public safety services went through a significant admi-
nistrative and structural change and the Union had full knowledge of
these changes years before negotiations on the contract currently in
place.  In light of this background, and particularly considering that
at least two collective bargaining agreements have been negotiated
since the creation of the Platoon Chief position during which the
union failed to raise the issue posed by this petition, the conclusion
is inescapable that the threshold standard of Rule 1.13(A), sub-
paragraph (c) should be applied.  We will therefore dismiss the peti-
tion without considering the merit of the Union's claim.[fn]2
     Having concluded that the Union's unit clarification petition
cannot stand, we do not reach the substantive issue raised by the
petition, that is, whether it is appropriate to include the position
of Platoon Chief in the Firefighter bargaining unit.  We intimate no
opinion whatever about the propriety of so doing, nor concerning
whether a supervisory officers unit would be appropriate.  Nothing in
this decision is intended to prejudice the right of either party to
file a petition consistent with the provisions of the Act and Rules

   2 This does not appear to be a case justifying discretion in the
application of Rule 1.13.  The evidence as clarified at the appeal
hearing placed the facts in a posture precluding the exercise of
     We note that Rule l.13(A) sub-paragraph (a) may also support
dismissal of the petition, since "the description of job descriptions
contained in the bargaining unit is clear and unequivocal."  [Emphasis
supplied]  The Platoon Chief position is found nowhere among the posi-
tions "contained in the bargaining unit."

and Procedures of the Board.[fn]3
     On the basis of the foregoing findings of fact and decision and
by virture of and pursuant to the powers granted to the Maine Labor
Relations Board by 26 M.R.S.A.  968(4), it is ORDERED:
          That the appeal of the City of Augusta of the Unit
     Clarification Report of December 12, 1984 is upheld and
     petition for Unit Clarification is hereby dismissed.
Dated at Augusta, Maine this 21st day of February, 1985.
                                  MAINE LABOR RELATIONS BOARD
The parties are advised           William M. Houston
of their right to seek            Alternate Chair
review of this report by
the Superior Court by
filing a complaint pur-
suant to 26 M.R.S.A.            /s/_________________________________
968(4)(Supp. 1983-84) and         Linda D. McGill
972(1974) and in accordance       Alternate Employer Representative
with Rule 80B of the Rules
of Civil Procedure within
30 days of the date of this
decision.                         /s/_________________________________
                                  Russell A. Webb
                                  Alternate Employee Representative

   3 For a discussion comparing unit determination and unit clarifica-
tion proceedings, the evidentiary requirements of each, the element of
timing affecting each, and the effect of a question of representation,
see Bangor and Local 1599, International Association of Fire Fighters,
MLRB No. 80-A-03 (July 18, 1980).
     We also note parenthetically that Counsel for the City stated on
the record that the City would recognize a Supervisory Officer unit
consisting of Platoon Chiefs alone or Platoon Chiefs, Captains and
Lieutenants.  However, this is for the parties to pursue, if they so