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 [-1-] __________________________________________________________________________ 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 -2- __________________________________________________________________________ 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 -3- __________________________________________________________________________ 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. -4- __________________________________________________________________________ 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 -5- __________________________________________________________________________ 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 -6- __________________________________________________________________________ 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 -7- __________________________________________________________________________ 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 -8- __________________________________________________________________________ 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 -9- __________________________________________________________________________ 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, -10- __________________________________________________________________________ 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 -11- __________________________________________________________________________ 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 -12- __________________________________________________________________________ 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. -13- __________________________________________________________________________ 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. -14- __________________________________________________________________________