Augusta Uniformed Firefighters Assoc., Local 1650, IAFF and City of Augusta,
No. 85-UC-02, reversed by Board in 85-A-02.
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 85-UC-02
Issued: December 12, 1984
_________________________________
)
AUGUSTA UNIFORMED FIREFIGHTERS )
ASSOCIATION, LOCAL 1650, INTER- )
NATIONAL ASSOCIATION OF FIRE )
FIGHTERS, AFL-CIO ) UNIT CLARIFICATION REPORT
)
and )
)
CITY OF AUGUSTA )
_________________________________)
This unit clarification proceeding was initiated on October 23,
1984, when the Augusta Uniformed Firefighters Association, Local 1650,
International Association of Firefighters, AFL-CIO ("Union") filed a
petition for unit clarification pursuant to Section 966(3) of the
Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A.
Section 961, et seq. A hearing on the petition was conducted by the
undersigned hearing examiner for the Maine Labor Relations Board
("Board"), on November 20, 1984, at the Bureau of Labor Standards
Conference Room, State Office Building, Augusta, Maine. The Union was
represented at the hearing by its President, Thomas Doore, and the
Union's examination of witnesses was conducted by Martin S. Hayden,
Esq. The City of Augusta ("Employer") was represented at the hearing
by Charles E. Moreshead, Esq.
The Union's petition seeks the inclusion of the position of
Platoon Chief into an existing bargaining unit composed of the uni-
formed members of the Augusta Fire Bureau, "excepting only the
Director of Public Safety and Chief Officers." The grounds, alleged
by the Union to mandate the change requested, are that the Employer
has essentially eliminated two classifications in the fire department,
those of Battalion Chief and Captain, and assigned the duties of the
latter position, which has always been included in the relevant
bargaining unit, to the Platoon Chief classification. The Employer
opposes the granting of the Union's petition on the grounds that, sub-
sequent to the creation of the Platoon Chief position, the parties
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negotiated its exclusion from the parameters of the bargaining unit;
therefore, the Board lacks jurisdiction herein; or, if the Board does
have such jurisdiction, the Platoon Chiefs are supervisory employees
and should be placed in a separate bargaining unit from the employees
whom they supervise.
The Union presented the following witnesses at the hearing:
Thomas Doore Firefighter
Norman Arbour Platoon Chief
The Employer presented the following witnesses:
Richard D. Griffin Director of Public Safety
John H. Crommett, Jr. Platoon Chief
The latter Employer witness listed above only testified on voir
dire concerning the genesis of Employer Exhibit No. 1. The following
exhibits were admitted into the record:
Union Exhibit No. 1 Seniority List 1983
Union Exhibit No. 2 Seniority List, January 1, 1984
Union Exhibit No. 3 Seniority List, February 13, 1984
Union Exhibit No. 4 Seniority List, April 5, 1984
Union Exhibit No. 5 Job Description, Fire Captain
Union Exhibit No. 6 Job Description, Battalion Chief
Union Exhibit No. 7 Job Description, Fire Lieutenant
Employer Exhibit No. 1 Proposed Job Description,
Platoon Chief
Board Exhibit No. 1 1983-1984 Collective Bargaining
Agreement between the Union and
the Employer
Board Exhibit No. 2 Recognition Articles from 1967,
1968, 1969, 1970 & 1971, 1973,
1974-1975, 1976, 1977-1978,
1979-1981, and 1982 Collective
Bargaining Agreements between the
Union and the Employer
Although initially objecting to the admission of Employer Exhibit No.
1 on the grounds that it had not been previously made available to the
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employees in the Platoon Chief classification, the Union examined the
Public Safety Director concerning said document. Upon the Employer's
motion, the prior decision excluding said document from the record was
reversed. The above-listed documents were the only ones offered at
the hearing. The parties were afforded full opportunity to examine
and cross-examine witnesses, to present evidence, and to make argu-
ment.
JURISDICTION
The Petitioner, Augusta Uniformed Firefighters Association, Local
1650, International Association of Firefighters, AFL-CIO, is the cer-
tified 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." The City of Augusta is the public employer, within
the meaning of Section 962(7) of the Act, of the employees whose
classifications are included in the foregoing bargaining unit, as well
as of the Platoon Chiefs. The jurisdiction of the hearing examiner to
hear this case and to rule on the petition for unit clarification lies
in 26 M.R.S.A. Section 966.
FINDINGS OF FACT
Upon review of the entire record, the hearing examiner finds:
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 classifica-
tions are included in the above-mentioned unit and of the Platoon
Chiefs.
3. The Platoon Chiefs are public employees, as defined in
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Section 962(6) of the Act.
4. 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.
5. The Battalion Chiefs had never been included in the bargaining
unit, described in paragraph 1 above, while the Captains had always
been included in said unit.
6. The position of Platoon Chief was created as part of the
reorganization mentioned in paragraph 4 hereof.
7. The Employer and the Union have discussed the modification of
the bargaining unit sought in this action and have been unable to
agree thereon.
8. There is no question concerning representation raised in this
proceeding.
9. The 1967 and 1968 collective bargaining agreements between the
parties exempted "the Fire Chief and Deputy" from the uniformed fire-
fighters' 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 relevant unit and the 1983-1984 agreement exempted "the Director
of Public Safety and Chief Officers" therefrom.
10. No evidence was presented at the hearing that the parties
have, as part of the collective negotiations which have resulted in
any of the aforementioned agreements, ever negotiated either the
inclusion or exclusion of the Platoon Chiefs in relation to the rele-
vant bargaining unit.
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.
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12. 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 as
follows: Deputy Fire Chief, Platoon Chief, Captain, Lieutenant,
Sergeant and Private. The positions of Captain and Sergeant are
currently unfilled; the former has been vacant since 1979 and the
latter has never been occupied. 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.
13. 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. Since the creation of the position, the
Platoon Chiefs have always been compensated at the rate specified for
Captains in the collective bargaining agreements between the parties.
The Battalion Chiefs were paid a weekly salary, at the rate now paid
to the Deputy Chief, and they were not eligible for overtime.
14. 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 and did not reside with the men while
on duty.
15. 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.
16. 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
Lieutenants, and the Platoon Chiefs perform the same work as the
Privates, as the need arises.
17. In relation to geographic proximity, the Platoon Chiefs reside
and work out of the same fire stations as the other unit employees.
18. Until recently, the parties had not discussed the status of
the Platoon Chiefs in relation to the relevant bargaining unit. The
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Employer has always considered that the Platoon Chiefs were excluded
from said unit; however, said view was never expressed to the Union.
The Union always felt that the Platoon Chiefs were included in the
unit and said stance was based on the fact that the Platoon Chiefs'
wages, hours, and working conditions have been consistent with the
collective bargaining agreements between the parties and have always
been adjusted to reflect changes negotiated in said agreements.
19. The incumbent Platoon Chiefs have, at at least one Union
meeting, expressed the desire to be included in the current Uniformed
Firefighters bargaining unit.
20. The bargaining unit noted in the preceding paragraph is a
wall-to-wall unit of Fire Bureau employees, except for the Public
Safety Director, Deputy Fire Chief, and Platoon Chiefs.
21. The relevant portion of the employer's organizational struc-
ture is outlined in paragraph 12 above.
22. The principal functions of the Platoon Chiefs are charac-
terized by the performance of such management control functions as
assigning, overseeing, and reviewing the work of subordinate
employees.
23. The Platoon Chiefs exercise judgment in adjusting grievances,
apply established personnel policies and procedures, and evaluate the
performance of subordinate employees.
24. The Platoon Chiefs have no power to suspend subordinate
employees; however, like the Lieutenants, they may recommend the impo-
sition of discipline. Although they do enforce personnel rules and
procedures, the Platoon Chiefs do not have access to other employees'
personnel records.
25. As bargaining unit members, the Lieutenants have not
experienced problems or conflicts in performing their supervisory
duties.
26. Lieutenants have, in the past, served as Union president and
vice-president and have been members of the Union's negotiating team.
Article VIII of the current collective bargaining agreement between
the parties sets forth salaries, including step increases, for both
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the Lieutenants and the Captains.
27. During February or March of 1984, one of the Platoon Chiefs
grieved the issuance of Union Exhibit No. 3. The Platoon Chief
involved requested and received Union representation for the prosecu-
tion of his grievance. The grievance was settled through a compromise
at the Director of Public Safety's level.
28. Platoon Chiefs attend Union meetings and have discussed
collective bargaining proposals, concerning wages and benefits, with
members of the Union bargaining team.
29. The proposed job description for the position of Platoon Chief
is in many ways identical with that for the Fire Captain classifica-
tion. Of the eight "Examples of Work" listed in the former document,
five were taken almost verbatim from the latter. Eight of the ten
"Requirements of Work" in the Platoon Chief's draft job description
are essentially identical with those listed in the Fire Captain
specification.
30. There are four employees in the Platoon Chief classification
and three Lieutenants.
DECISION
At the outset of the hearing, the Employer objected to the Board's
asserting jurisdiction in this matter on the grounds that the parties
had negotiated over the bargaining unit status of the Platoon Chiefs
and had agreed to exclude said classification from the bargaining unit
in question. The Employer based its argument on the language of the
recognition clause, Article II, of the current collective bargaining
agreement between the parties. The relevant portion of Article II
states:
"The City recognizes the Union as the sole and exclu-
sive bargaining agent for the uniformed members of the Fire
Bureau, excepting only the Director of Public Safety and
Chief Officers, for the purpose of collective bargaining
and entering into agreements relative to wages, hours and
working conditions."
Rule 1.13(A) of the Board's Rules and Procedures provides that a peti-
tion for unit clarification "may be denied if . . . the petition
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attempts to modify the composition of the bargaining unit as nego-
tiated by the parties and the alleged changes therein have been made
prior to negotiations on the collective bargaining agreement presently
in force." Although the change in this case, the creation of the
Platoon Chief classification in 1978, clearly preceded the nego-
tiations which resulted in the current agreement, the foregoing Rule
does not require dismissal of the Union's petition. Addressing a
situation similar to that now before the hearing examiner, the full
Labor Relations Board has stated:
"One contention by the City deserves comment. This is
the argument that the hearing examiner should have denied
the Petition under Rule 1.13(A) of the Board's Rules and
Procedures without reaching the merits. This argument over-
looks the fact that application of Rule 1.13(A), which sets
forth instances when unit clarification petitions may be
denied, is within the discretion of the hearing examiner.
Particularly where, as here, the employer creates a new
position to perform work formerly performed by unit members
is the hearing examiner warranted in proceeding to a com-
plete and thorough consideration of the merits of the peti-
tion. The hearing examiner committed no error by failing
to evoke Rule 1.13(A) to deny the Petition."
AFSCME, Council 74 and City of Brewer, MLRB No. 79-A-01, at 5
(Oct. 17, 1979) (Emphasis by the Board). Rule 1.13(A) does not, under
the circumstances of this case, require dismissal of the petition.
The Union countered the Employer's jurisdictional argument by
introducing relevant provisions of past collective bargaining agree-
ments between the parties. The documents demonstrated that, although
the Platoon Chief classification was not created until approximately
1978, the "Chief Officers" have been excluded from the bargaining unit
at issue since 1969. It is clear to the hearing examiner that the
exclusionary language, when adopted, was meant to apply to the Deputy
Chief and the Battalion Chief positions. No evidence was presented
that the parties ever negotiated the unit status of the Platoon
Chiefs, subsequent to the elimination of the Battalion Chief and
Captain classifications. The Employer has always considered that the
Platoon Chiefs were excluded from the unit; however, said belief was
never communicated to the Union. The Union, on the other hand, has
always held the opinion that the Platoon Chiefs were included in the
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relevant unit. The Union's opinion, although never expressed to the
Employer, is reasonable in that it is based on the fact that the
Platoon Chiefs' wages, hours, and working conditions have always been
consistent with those set by the relevant collective bargaining
agreements and have been adjusted to reflect negotiated changes
therein. Furthermore, the Platoon Chiefs have attended Union meetings
and have discussed collective bargaining proposals with members of the
Union's negotiating team. Since the negotiated agreements control the
Platoon Chiefs' wages, hours, and working conditions, the Union team
members have actively sought the Platoon Chiefs' input thereon.
Finally, during February or March of 1984, one of the Platoon Chiefs
requested and received Union representation for the prosecution of a
grievance. The dispute was settled at the Director of Public Safety's
level of the grievance procedure.
The four procedural prerequisites to the exercise of jurisdiction,
outlined in Section 966(3) of the Act, are present in this case.
The Union is the currently certified bargaining agent for the unit in
contention and is also the petitioner in this action. The parties
have attempted and failed to reach agreement on the unit modification
sought and there is no question herein concerning representation.
In light of all of the facts in this action, the hearing examiner
concludes that the Board may properly exercise jurisdiction herein.
Turning to the merits of the case, the first relevant issue is
whether the statutory standard, warranting modification in the com-
position of a bargaining unit, has been met herein. Section 966(3) of
the Act requires that, to warrant modification in the composition of
an existing bargaining unit, the circumstances surrounding the for-
mation of that unit must have "changed sufficiently." The following
significant changes were substantiated by the evidence: the virtual
elimination of the bargaining unit position of Captain, the creation
of the Platoon Chief classification, and, as evidenced by the simi-
larities between their respective job descriptions, the assignment of
the Captains' duties to the Platoon Chiefs. The hearing examiner
holds that these changes are sufficient to warrant modification of the
existing Uniformed Firefighters bargaining unit. This holding is con-
tingent upon resolution of the remaining issues in a manner consistent
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with the relief sought.
Section 966(2) of the Act requires that, in order to be included
in the same bargaining unit, job classifications must share a "clear
and identifiable community of interest." In evaluating the presence
or absence of the requisite community of interest among particular
employee positions, the Labor Relations Board has developed and con-
sistently applied a set of eleven criteria. The relevant community of
interest factors are:
"(1) similarity in the kind of work performed [11]; (2)
common supervision and determination of labor-relations
policy [12]; (3) similarity in the scale and manner of
determining earnings [13]; (4) similarity in employment
benefits, hours of work and other terms and conditions
of employment [14]; (5) similarities in the qualifica-
tions, skills and training of employees [15]; (6) fre-
quency of contact or interchange among the employees
[16]; (7) geographic proximity [17]; (8) history of
collective bargaining [18]; (9) desires of the affected
employees [19]; (10) extent of union organization [20];
and (11) the public employer's organizational structure
[21 and 12]."
AFSCME, Council 74 and City of Brewer, supra, at 3-4 [additions by
hearing examiner]; cited with approval, Teamsters Local 48 and County
of Cumberland, MLRB No. 84-A-04, at 11, n. 2 (April 25, 1984).
The numbers appearing in brackets in the above quotation indicate the
paragraph(s) of the foregoing findings of fact which is relevant to
the evaluation criterion immediately preceding each bracket.
The hearing examiner has considered the relevant findings of fact,
independently and together, within the Board's community of interest
analysis. The hearing examiner concludes that the following factors
clearly demonstrate that the Platoon Chief classification shares a
clear and identifiable community of interest with the other positions
in the Augusta Uniformed Firefighters' bargaining unit. Although
supervising and directing inspections and firefighting operations, the
Platoon Chiefs also perform the same work as unit employees; the
supervision and determination of labor relations policies for the
Platoon Chiefs is the same as that for the unit employees; the Platoon
Chiefs, like the unit employees, are compensated on a weekly basis,
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based upon the same work week, are eligible for overtime, and their
actual pay rates are determined by the collective bargaining agreement
between the parties; the Platoon Chiefs receive the same benefits and
work the same shifts as the other employees and they live at the fire
station while on duty like the unit employees; the Platoon Chiefs are
in constant contact with and have frequent interchange with the unit
employees; the unit employees reside at and work out of the same sta-
tions as the Platoon Chiefs; the bargaining unit represented by the
Union includes all of the Fire Bureau's public employees; and the
Platoon Chiefs are in the same division of the Employer's organiza-
tional structure as the unit employees. Militating against the result
reached by the hearing examiner was the fact that the Platoon Chiefs
have greater skills and have received more extensive training than
have the other unit employees. Since the collective bargaining
history relative to the Platoon Chiefs was somewhat ambiguous and
because the evidence of the Deputy Chiefs' desires was based in part
on hearsay, neither of these factors was considered in the instant
community of interest analysis. Had they been taken into account,
they would have supported the hearing examiner's conclusion.
The Employer's major contention on the merits is that, as super-
visory employees, the Platoon Chiefs should be placed in a separate
bargaining unit, along with the Lieutenants. There is no doubt that
the Platoon Chiefs are supervisory employees, within the meaning of
Section 966(1) of the Act. The principal functions of the Platoon
Chief classification are characterized by the performance of such
management control functions as assigning, overseeing, and reviewing
the work of subordinate employees. The Platoon Chiefs exercise
judgment in adjusting grievances, apply established personnel policies
and procedures, and evaluate the performance of subordinate employees.
Like the Lieutenants, the Platoon Chiefs may not suspend employees but
may recommend the imposition of discipline to the Deputy Fire Chief
for his action. Although enforcing personnel rules and procedures,
the Platoon Chiefs have no access to other employees' personnel files.
The conclusion that the Platoon Chiefs are supervisory employees does
not require that they be placed in a separate bargaining unit. Maine
School Administrative District No. 14 and East Grand Teachers
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Association, MLRB No. 83-A-09, at 12 (Aug. 24, 1983).
Ideally, the two supervisory classifications in the Augusta Fire
Bureau should be in the same bargaining unit. The creation of such a
unit would require severance of the Lieutenant position from the
existing unit. The controlling standard used in considering severance
questions is the community of interest test discussed above.
Teamsters Local 48 and County of Cumberland and Council 74, AFSCME,
Unit Determination Report, at 9-10 (Mar. 16, 1984), aff'd., Council
74, AFSCME and Teamsters Local 48 and Cumberland County, MLRB No.
84-A-04 (Apr. 25, 1984). As evidenced in the above discussion, there
are no distinctions between the Lieutenants and the other unit
employees, in any of the community of interest factors, except that
the Lieutenants do exercise some supervisory authority over said
employees. The Lieutenants share a clear and identifiable community
of interest with the other unit classifications. Secondly, in
applying the community of interest test to severance situations, spe-
cial emphasis is given to the level of representation received by the
employees whose severance is sought, within the context of the
"history of bargaining" factor. The hearing examiner discussed this
emphasized criterion, at page 14 of the Cumberland County unit deci-
sion, as follows:
"The adequacy of representation by the incumbent bargaining
agent is an important factor in the NLRB's consideration
of severance petitions. See, e.g., Bendix Corp., 227 NLRB
1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-5
(1976). The NLRB holds, however, that 'a union that does
not accede to all demands made upon it by the unit seeking
to be severed cannot be accused of inadequately representing
that unit based on that fact alone.' Firestone Tire and
Rubber Co., 223 NLRB 904, 906 (1976). A number of factors
are considered, including whether members of the proposed
unit have participated in the affairs of the incumbent union
by acting as stewards and bargaining team members, and
whether any special provisions affecting the interests of
the proposed unit have been included in bargaining agree-
ments. Bendix Corp., 227 NLRB at 1537; Beaunit Corp., 224
NLRB at 1504."
The evidence relevant to this inquiry presented at the hearing was
that, in addition to not experiencing actual conflicts of loyalty as
unit employees, the Lieutenants have served as officers of the Union
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and have been members of the Union negotiating team in collective
bargaining with the Employer. Article VIII of the relevant collective
bargaining agreement sets forth salaries, including step increases,
for both the Lieutenants and the Captains. The evidence presented,
therefore, clearly militates against severance of the Lieutenants from
the current bargaining unit.
The non-severance of the Lieutenants means that, if the Platoon
Chiefs are excluded from the present unit, the result would be the
creation of a small, four-person supervisory unit. The formation of
such a unit would contravene the Board's policy of discouraging the
proliferation, through fragmentation, of small bargaining units within
a single department. Town of Yarmouth and Teamsters Local 48, MLRB
No. 80-A-04, at 4 (June 16, 1980). This policy is based upon recogni-
tion of the fact that the employer, the bargaining agent, and the
State can all spend the same amount of effort, money, and services
dealing with a small unit as is expended for a much larger one. Maine
School Administrative District No. 14, supra, at 13.
The creation of the Platoon Chief classification and the assign-
ment of the Captain's duties thereto represent a significant change in
the circumstances which surrounded the formation of the Augusta
Uniformed Firefighters bargaining unit and warrant a change in the
composition of said unit. Although an essentially supervisory posi-
tion, the Platoon Chief classification shares a clear and identifiable
community of interest with the other positions in the aforementioned
unit. Creation of a separate bargaining unit for the four Platoon
Chiefs would result in undue unit fragmentation within the Augusta
Fire Bureau. In light of all of the foregoing facts and discussion,
the hearing examiner concludes that the Platoon Chiefs should be
included in the Augusta Uniformed Firefighters bargaining unit and,
subsequent to said modification, the resulting unit will remain
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.
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Section 966, it is ORDERED:
1. The petition for unit clarification filed by the
Augusta Uniformed Firefighters Association, Local
1650, International Association of Firefighters,
AFL-CIO, on October 23, 1984, is granted.
2. The Platoon Chief classification in the Augusta
Fire Bureau is included in the Augusta Uniformed
Firefighters bargaining unit.
Dated at Augusta, Maine, this 12th day of December, 1984.
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
the date of this report.
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