Aff'd. City of Ellsworth v. Ellsworth Fire Fighters Association, MLRB No. 92-UDA-01 (Sept. 10, 1991) STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 91-UD-19 Issued: August 2, 1991 ______________________________________ ) ELLSWORTH FIRE FIGHTERS ASSOCIATION, ) ) Petitioner, ) ) and ) UNIT DETERMINATION REPORT ) CITY OF ELLSWORTH, ) ) Respondent. ) ______________________________________) This unit determination case was initiated on May 30, 1991, when the Ellsworth Fire Fighters Association (hereinafter referred to as "'Union") filed a petition for unit determination pursuant to 26 M.R.S.A. 966(l) and (2) (1988). An evidentiary hearing was scheduled to be conducted by the undersigned hearing examiner for the Maine Labor Relations Board ("Board") on July 8, 1991, in the Labor Board Conference Room, Room 714 of the State Office Building, Augusta, Maine. The Union was represented by Mr. Robert Duplessie, Bargaining Agent, Professional Fire Fighters of Maine, International Association of Fire Fighters, AFL-CIO-CLC. The City of Ellsworth ("Employer") appeared through and was represented by its City Manager, Mr. Timothy J. King. The Union's petition seeks to create a bargaining unit described as follows: INCLUDED: All full-time employees of the Ellsworth Fire Department including Deputy Fire Chief, Lieutenant, Engineer, Engineer/Electrical Inspector, and Engineer/Hazardous Material Specialist. EXCLUDED: Fire Chief and all other employees of the City of Ellsworth. The Employer opposes the Union's petition on the grounds that, although public employees within the meaning of 26 M.R.S.A. 962(6), the Deputy Fire Chief and Lieutenant positions are supervisory in nature and should be assigned to a separate unit from that containing the balance of the classi- -1- fications sought to be included by the Union's petition. Prior to convening the formal evidentiary proceeding, the parties met with the hearing examiner in an informal conference whose purpose was to ascertain whether there were any material issues of relevant fact involved in this matter. Through the diligent effort and cooperation of the par- ties, a complete stipulation of the relevant facts was reached, obviating the need for a formal proceeding. Said stipulation has been incorporated into the findings of fact below. Participating in the conference as resource persons were: Michael A. Hangge Engineer, Ellsworth Fire Department Jonathan E. Marshall Lieutenant, Ellsworth Fire Department Robert B. McKenney Deputy Fire Chief, Ellsworth Fire Department The following documents, the only exhibits proposed for admission, were admitted into the record: Joint Exhibit No. 1 City of Ellsworth Personnel Ordinance Joint Exhibit No. 2 Job Descriptions, full-time employee classifications, Ellsworth Fire Department Joint Exhibit No. 3 Wage scales, including those currently in effect for the Ellsworth Fire Department The parties were accorded full opportunity to present proposed stipulations, to introduce evidence, and to make argument. JURISDICTION The Ellsworth Fire Fighters Association and the Professional Fire Fighters of Maine, International Association of Fire Fighters, AFL-CIO-CLC, are public employee organizations, within the meaning of 26 M.R.S.A. 962(2). The City of Ellsworth is the public employer, within the defini- tion of 26 M.R.S.A. 962(7), of all full-time employees of the Ellsworth Fire Department. The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination herein lies in 26 M.R.S.A. 966. -2- FINDINGS OF FACT Upon review of the entire record, consisting of the parties' stipula- tion of relevant facts and the documents introduced as exhibits, the hearing examiner finds: 1. The Ellsworth Fire Fighters Association, affiliated with the Professional Fire Fighters of Maine, International Association of Fire Fighters, AFL-CIO-CLC, is a public employee organization, within the meaning of 26 M.R.S.A. 962(2), which is seeking to become the bargaining agent for a unit of Ellsworth Fire Department employees. 2. The City of Ellsworth is the public employer, within the defini- tion of 26 M.R.S.A. 962(7), of all of the full-time employees of the Ellsworth Fire Department. 3. Each of the full-time employees of the Ellsworth Fire Department is in one of the following job classifications: Fire Chief, Deputy Fire Chief, Lieutenant, Engineer, Engineer/Electrical Inspector, and Engineer/ Hazardous Material Specialist. 4. Except for the Fire Chief and the Deputy Fire Chief, the public employee status of the employees in all of the other classifications mentioned in the preceding paragraph, within the definition of 26 M.R.S.A. 962(6), was not challenged by the Employer. 5. The Deputy Fire Chief is appointed to a one-year term by the City Manager and said appointment is confirmed by the City Council. Unlike the Fire Chief, Police Chief and the Code Enforcement Officer, among others, the Deputy Fire Chief classification is not explicitly made an appointive position in the Ellsworth City Charter or ordinances. 6. The employees of the Ellsworth Fire Department have not previously engaged in collective bargaining. 7. The Fire Chief's regularly-scheduled work time is business hours, Monday through Friday. 8. The swing or rotating schedule at the Ellsworth Fire Department consists of three twenty-four hour shifts. The Deputy Chief and the Lieutenant are permanently assigned to supervise separate shifts and the third shift is supervised by the most senior Engineer who is on-duty on -3- that shift. 9. Other than the Deputy Chief and the Lieutenant, all of the other full-time employees of the Ellsworth Fire Department rotate through the various shifts so that everyone works with everyone else at some time, except for the Deputy Chief and the Lieutenant. 10. The level of fire protection provided by the eight full-time employees of the Ellsworth Fire Department is supplemented by the Senator Hale Hose Company, which is made up of volunteers who report to fire scenes on an on-call basis. 11. Upon receiving an alarm, the full-time employees on-duty respond to the fire scene and extinguish the blaze. If the fire is such that it cannot be extinguished by the on-duty employees, they call in all available members of the Senator Hale Hose Company. 12. The Senator Hale Hose Company consists of two Captains, three Lieutenants, and approximately thirty volunteer fire fighters. 13. The chain of command at the Ellsworth Fire Department, including the members of the Senator Hale Hose Company and starting with the most superior officer, is as follows: Fire Chief, Deputy Fire Chief, two Captains (on-call employees), three Lieutenants (two are on-call), five full-time fire fighters, and approximately thirty on-call fire fighters. 14. At the scene of a fire, the highest ranking fire fighter present, whether full-time or on-call, is in charge of directing operations. The Fire Chief attends almost all fires and, hence, is in charge thereat. 15. If the Deputy Fire Chief or the full-time Lieutenant operates a truck as an Engineer at a fire scene, they remain in that capacity until they are relieved by an Engineer. 16. All of the full-time employees of the department: respond to fire alarms, operate the various apparatus and equipment used to extinguish fires, and participate in routine maintenance of the department's building and equipment. 17. In addition to performing the duties listed in the preceding paragraph, the Deputy Fire Chief reviews building plans and inspects struc- tures, to assure compliance with fire codes, and serves as the department's -4- training coordinator. 18. In addition to performing the duties listed in paragraph 16 hereof, the lieutenant serves as the department's fire prevention and public information officer, visiting schools and other institutions and conducting fire safety programs. 19. In addition to performing the duties listed in paragraph 16 hereof, the Engineer/Electrical Inspector: reviews permit applications and issues permits for all electrical work done in the city, conducts on-site inspections of electrical work in progress, and maintains all records relating to the electrical inspection program. 20. In addition to performing the duties listed in paragraph 16 hereof, the Engineer/Hazardous Material Specialist: inspects locations having hazardous materials, maintains records of hazardous materials throughout the city, trains the other staff in the handling of hazardous materials, and maintains records of the hazardous material program. 21. While working on the specialties listed in paragraphs 17 through 20 above and because the nature of the work in each case, the employees involved do so without constant direct supervision. 22. The department's standard operating procedures are determined by the Fire Chief, after receiving a recommendation thereon from the officers' committee. The officers' committee is composed of the Deputy Chief, the Lieutenant and the two Captains and three Lieutenants from the Senator Hale Hose Company. 23. Once the members of the committee mentioned in the preceding paragraph reach a concensus on proposed changes in the standard operating procedures, the Deputy Chief drafts such proposals and the final decision thereon is made exclusively by the Fire Chief. 24. Neither the Deputy Chief nor the Lieutenant have ever adjusted a grievance on behalf of the Employer. 25. There is no formal job performance evaluation procedure at the fire department; informal evaluations of the employees' performance are made by the Fire Chief. -5- 26. While the Deputy Chief replaces the Fire Chief when the latter is away from the city, there is no requirement that at least one of them must be in town at all times. When both the Fire Chief and the Deputy Chief are out-of-town, the senior fire fighter on duty is in charge of the department, unless a working fire is in progress in which case paragraphs 13 and 14 hereof apply. 27. The Deputy Chief has no role in formulating the department's annual operating budget. Tne Fire Chief does show the proposed budget to the Deputy Chief prior to the City Council's work session thereon and both the Fire Chief and the Deputy Chief attend the work session in order to answer questions and explain portions of the budget. 28. While the Deputy Chief's job description states that the Deputy Chief "[p]articipates in the recruitment process including the inter- viewing, testing and evaluating of candidates," most persons hired as full- time employees were members of the Senator Hale Hose Company, prior to being hired, and the Fire Chief knows their qualifications and abilities; therefore, no interview is necessary. 29. During the incumbent Deputy Chief's five-year tenure, two full- time employees have been hired: in one case, the Deputy Chief sat on an oral interview board with a call Captain and the Chiefs of two neighboring fire departments, candidates were interviewed and rated and a hiring recom- mendation was made to the Fire Chief; in the other case, no interview was conducted. The hiring decision was made by the Fire Chief in each case. 30. All of the shift supervisors, including the Deputy Chief, the Lieutenant, and whichever fire fighter happens to be the most senior on- duty on the third shift are all supervised directly by the Fire Chief. The labor relations policies for all of the employees of the department are established by the Ellsworth City Council and are implemented by the City Manager and the Fire Chief. 31. Except for the Fire Chief who receives a weekly salary, the wages of all of the employees of the fire department are based on an hourly rate. The hourly scale ranges from $5.97 to $9.20 for all the hourly employees. 32. The employment benefits and terms and conditions of employment are identital for all of the full-time employees of the fire department, -6- except for the Fire Chief. 33. The Deputy Chief and the Lieutenant positions require essentially the same qualifications and skills as are required for the other full-time fire fighters. All the full-time fire fighters must, at a minimum, be high school graduates. 34. Since everyone in the department, except for the Deputy Chief and the Lieutenant, works with everyone else, all the full-time fire fighters are in regular professional contact with each other. 35. All of the full-time employees of the fire department work in and from the same fire station. 36. In terms of organizational structure, the City of Ellsworth is divided into several departments; e.g., the fire department, police depart- ment, public works (highway) department, code enforcement office, city clerk's office and assessor's office. Each department is run by a separate department head. DISCUSSION The question presented in the instant case is whether the Deputy Fire Chief and Lieutenant of the Ellsworth Fire Department should be included in the same bargaining unit as the full-time fire fighters employed by the City of Ellsworth. At the outset of the proceeding, the parties agreed that the Engineer, Engineer/Electrical Inspector, and Engineer/Hazardous Material Specialist classifications at the Ellsworth Fire Department together constitute an appropriate bargaining unit. As will be discussed later in this decision, all of these positions share a clear and identifi- able community of interest and, hence, comprise a unit that is appropriate for purposes of collective bargaining. The Employer's position on the issues in controversy was that the Deputy Fire Chief was part of management and, hence, should not be included in any bargaining unit and that the Lieutenant was a supervisory employee and should be placed in a separate bargaining unit from the rank-and-file fire fighters. The Union argued that, except for the Fire Chief, all of -7- the full-time employees of the Ellsworth Fire Department share a clear and identifiable community of interest and, therefore, should be included in the same bargaining unit. During the course of the informal conference, it became clear to all that the Deputy Fire Chief was a public employee, within the definition of 962(6) of the Act. At first blush, it appeared that the Deputy Fire Chief might fall within the exception contained in 962(6)(B) which states: "Public employee means any employee of a public employer, except any person:..... B. Appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer, except that appointees to county offices shall not be excluded under this paragraph unless defined as a county commissioner under Title 30-A, section 1302; or . . . . The record indicated that the Deputy Fire Chief was appointed to a one-year term by the City Manager and such appointment was then confirmed by the City Council; however, unlike the Fire Chief, Police Chief and the Code Enforcement Officer, the Deputy Fire Chief classification was not explicit- ly referred to as being an appointive position in the Ellsworth ordinances or municipal charter. The Maine Superior Court and Board hearing officers have held that 962(6)(B) excludes from the definition of public employee those who are appointed to office pursuant to statute, ordinance, or reso- lution. In Page v. Stewart, No. CV-86-663, slip op. at 6-8 (Me. Super. Ct., York Cty., Apr. 22, 1988), the Court held that a municipal tax assessor appointed to a one-year term by the city administrator pursuant to a provision of the municipal charter was within the definition of 962(6)(B). Similarly, the hearing examiner in Teamsters Local Union No. 48 and Town of Dixfield, No. 80-UD-20, slip op. at 2 (Me.L.R.B. Mar. 14, 1980), held that a police chief appointed by the municipal selectmen for a one-year term pursuant to 30 M.R.S.A. 2401 fell within the meaning of 962(6)(B). Since the Deputy Fire Chief position is not an appointive one under the Ellsworth Charter or Ordinances, that classification is not excluded from the definition of public employee by 962(6)(B). Second, since none of the employees in the Ellsworth Fire Department have ever engaged in collective bargaining, the Deputy Fire Chief cannot be -8- a "confidential" employee within the meaning of 962(6)(C) of the Act. Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, AFT, AFL-CIO, No. 85-A-01, slip op. at 9-10, 8 NPER ME-16011 (Me.L.R.B. Feb. 6, 1985). None of the other exclusions contained in 962(6) were even arguably applicable to the Deputy Fire Chief; therefore, the Deputy Fire Chief employed by the Ellsworth Fire Department is a public employee within the meaning of 26 M.R.S.A. 962(6). The Employer then argued that the Deputy Fire Chief and the Lieutenant are supervisory employees, within the meaning of 26 M.R.S.A. 966(l), and should be assigned to a separate bargaining unit from the rest of the full- time employees of the fire department. Section 966(l) of the Act expresses a preference that supervisory employees not be included in a bargaining unit with the employees whom they supervise. Town of Kittery and Teamsters Local Union No. 48, No. 83-A-02, slip op. at 4, 5 NPER 20-14018 (Me.L.R.B. Feb. 7, 1983). In Kittery, the Board and the hearing examiner recognized tnat the inclusion of supervisory employees in the same unit with the employees whom they supervise could result in a conflict of loyalties on the part of the supervisors, between that owed to the employer and that felt for fellow unit members, and such conflict could interfere with the effective supervision of the subordinate employees. Kittery, supra, 83-A-02 at 5; Teamsters Local Union No. 48 and Town of Kittery, No. 83-UD-04, slip op. at 3 (Me.L.R.B. Nov. 5, 1982). The relevant portion of Section 966(l) of the Act states: In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other criteria, if the principal functions of the position are characterized by performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees, or performing such duties as are distinct and dissimilar from those performed by the employees supervised, or exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the establishment of perform- ance standards for subordinate employees and taking corrective measures to implement those standards. Turning to the first tine of the above test, neither the Deputy Chief nor the Lieutenant schedule employees for work. The established shift rotation -9- schedule continues from year to year and, if shift swaps become necessary, they must be approved by the Fire Chief. There was little discussion con- cerning the assigning, overseeing and reviewing the work of subordinate employees by the Deputy Chief and Lieutenant. The colloquy relevant to this consideration related to the nature of the department and its func- tioning on a regular basis. Four salient points emerged: first, because of the department's small size, most of the full-time employees are spe- cialists who know and perform their work without requiring a great deal of supervision; second, the overall direction of the department and most of the supervision is performed by the Fire Chief; third, in addition to the Deputy Chief and the Lieutenant, the other shift supervisor is the senior fire fighter on duty; therefore, whatever level of supervision that is exercised by the Deputy Chief or Lieutenant is also exercised by a rank- and-file employee; and, fourth, in the absence of the Fire Chief at a fire scene, the Deputy Chief and Lieutenant are primarily supervising and directing the activities of persons who are not public employees--the members of the Senator Hale Hose Company. The Deputy Chief and the Lieutenant each perform unique work; however, other full-time employees also have specialized duties. The Deputy Chief reviews plans and inspects buildings to assure compliance with fire codes and serves as the departmental training coordinator. The Lieutenant is the department's fire prevention and public information officer. One Engineer performs electrical inspections and prepares reports and statistics related thereto and another Engineer is the Hazardous Material Specialist, per- forming inspections, maintaining records, and training other department staff in connection with hazardous materials present in the City of Ellsworth. All of these employees respond to fire alarms, perform general maintenance work on fire department property, and help ensure that all fire apparatus is ready for immediate emergency response. The Deputy Chief stated that he spends approximately 60 percent of his work time performing specialized work, primarily inspections, and 40 percent of his time is spent doing regular work performed by the other full-time employees. The Deputy Chief estimated that similar work time allocations apply to the Engineer/Electrical Inspector and the Engineer/Harzardous Material Specialist. Although the four employees discussed in this paragraph, -10- including the Deputy Chief and the Lieutenant, have specialized duties unique to their classifications, such duties are not distinct and dissimi- lar from those of the rank-and-file employees, within the meaning of 966(l) of the Act. Turning to the third prong of the supervisory employee unit assignment test, neither the Deputy Chief nor the Lieutenant has ever been involved in adjusting a grievance on behalf of the Employer and there has never been a collective bargaining agreement to enforce. The Deputy Chief and the Lieutenant, together with the three Captains and two Lieutenants from the call department, constitute a committee that advises the Fire Chief on pro- posed changes in the fire department's standard operating procedures. Once the committee reaches a consensus, the Deputy Chief drafts the pro- posed changes. After receiving the committee's recommendations, the Fire Chief makes the final decisions concerning the standard operating proce- dures. There are no formal job performance evaluations in the fire depart- ment; however, informal evaluations are performed by the Fire Chief. The Employer presented three additional arguments, supporting its con- tention that the Deputy Chief should be assigned to a separate bargaining unit. These considerations are: (1) the Deputy Chief replaces the Fire Chief, in the event that the latter is away from the city, (2) the Deputy Chief assists in the preparation of the fire department's annual budget, and (3) the Deputy Chief is involved in the hiring process for new fire fighters. While the Deputy Chief does replace the Fire Chief, there is no requirement that one or the other of them must be in the city at all times. In fact, on the day of the scheduled hearing herein, the Fire Chief was away from the City of Ellsworth on other business and both the Deputy Chief and the Lieutenant were in attendance at the conference. Second, the Deputy Chief stated that he does not have input in the development of the departmental budget. The Fire Chief does show the proposed budget to the Deputy Chief prior to the City Council's workshop thereon and both attend the budget workshop. Third, during his five-year tenure as Deputy Chief, the incumbent in that position has sat on one oral board to interview potential hirees and recommend a candidate to the Fire Chief for hiring. During that time, another employee was hired without having been inter- viewed. Most persons hired as full-time fire fighters were members of the Senator Hale Hose Company prior to being hired; therefore, the Fire Chief knows their qualifications and abilities and no interview is required. Having examined all of the statutory criteria relevant to the unit assignment of supervisory employees, as well as the additional con- siderations raised by the Employer, the hearing examiner concludes that, on the basis of the record in this proceeding, the Deputy Fire Chief and Lieutenant employed by the Ellsworth Fire Department should be included in the same bargaining unit as the Engineers, Engineer/Electrical Inspector and Engineer/Hazardous Material Specialist, if the two former classifica- tions share the necessary level of community of interest with the latter three for all of them to constitute an appropriate bargaining unit. In order to constitute an appropriate bargaining unit, employee classifications must share a clear and identifiable community of interest. 26 M.R.S.A. 966(2) (1988). The Board has developed and consistently applied an eleven-point test to determine whether the statutorily-required community of interest level is present in a given case. Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at 3-4, 1 NPER 20-10031 (Me.L.R.B. Oct. 17, 1979); Penobscot Valley Hospital, supra, slip op. at 4. When the Board amended its Rules in July of 1990, it adopted a new rule that incor- porates the relevant community of interest factors, Board Rule 1.11(F)(1). Among the relevant community of interest criteria are: (1) similarity in the kind of work performed; (2) common super- vision and determination of labor relations policy; (3) simi- larity in the scale and manner of determining earnings; (4) similarity in employment benefits, hours of work and other terms and conditions of employment; (5) similarity in qualifi- cations, skills and training of employees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the employer's organizational structure. Turning to the first community of interest factor, the undersigned wrote the following in a recent decision: In comparing the nature of the work being performed by the various classifications under consideration, the essence or basic type of the functions being performed is far more impor- -12- tant than the details of each position's work responsibilities. Inherent in the existence of separate job classifications is a difference in the specific work assignment of each classifi- cation; however, such differences do not preclude the inclusion of various classifications in the same bargaining unit. Auburn Education Association/MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op. at 11 (Me.L.R.B. Feb. 27, 1991), aff'd, Auburn School Committee v. Auburn Education Association/MTA/NEA, No. 91-UDA-01 ___ NPER- ME ___ (Me.L.R.B. May 8, 1991). As ws discussed above, the work of the Deputy Chief and the Lieutenant is not distinct and different from that of the other full-time fire fighters. All of them respond to alarms, all operate the various pieces of apparatus used in extinguishing fires, all are engaged in routine maintenance of the department's building and equip- ment. While the Deputy Chief and the Lieutenant have specialties other than extinguishing fires, the Engineer/Hazardous Material Specialist con- ducts training, as does the Deputy Chief, and the Engineer/Electrical inspector does building inspections, as does the Deputy Chief. Second, all of the shift supervisors, including the Deputy Chief, the Lieutenant, and the senior fire fighter on duty on the third shift, are supervised directly by the Fire Chief. The labor relations policies for all of the employees of the Ellsworth Fire Department are determined by the Ellsworth City Council and are implemented by the City Manager and the Fire Chief. The wages of all of the employees of the Ellsworth Fire Department, except for those of the Fire Chief who is a salaried employee, are based on an hourly rate. The hourly scale ranges from $5.97 to $9.20 for all of the hourly employees. The employment benefits, hours of work, and other terms and conditions of employment for the Deputy Chief and the Lieutenant are identical to those of all of the other full-time fire fighters, except for the Fire Chief. Other than having more experience than the average fire fighter, the Deputy Chief and the Lieutenant have the same qualifications, skills, and training as the other full-time fire fighters. As shift supervisors permanently assigned to separate shifts, the Deputy Chief and the Lieutenant never work together. All of the other -13- full-time fire fighters rotate through all three shifts; therefore, all of them work with each other and with the Deputy Chief and the Lieutenant for a period of time each year. All of the employees work in and from the same fire station; therefore, they are all in close geographic proximity with each other. There is no collective bargaining history for any of the Ellsworth Fire Department employees. In terms of extent of union organization, the Union is seeking herein to organize all of the public employees employed by the Ellsworth Fire Department. Finally, all of the fire fighters, including the Deputy Chief and the Lieutenant are in the same sub-division of the Employer's organizational structure--they are all employed in the same municipal department. In sum, evidence was received concerning ten of the eleven community of interest factors. Each factor was examined individually and, together, all ten criteria persuade the hearing examiner to conclude that the Deputy Fire Chief, Lieutenant, Engineer, Engineer/Electrical Inspector, and Engineer/Hazardous Material Specialist job classifications share a clear and identifiable community of interest, within the meaning of 26 M.R.S.A. 966(2); therefore, together, said positions constitute an appropriate unit for purposes of collective bargaining. One final note must be made. The Union relied on the prior unit determination decision affecting the Ellsworth Fire Department, City of Ellsworth and Employees of Ellsworth Fire Department, No. 77-UD-20, slip op. (Me.L.R.B. June 1, 1977), in making its argument herein. The hearing examiner has not relied on said decision for three reasons. First, several new positions have been created during the intervening years, including those of Lieutenant, Engineer/Electrical Inspector and Engineer/Hazardous Material Specialist, and, at a minimum, the Chief Engineer classification was renamed Deputy Fire Chief. Also significant was the fact that several duties now being performed, including building and electrical inspections, the hazardous material program, and the public education and information functions either did not exist or were not mentioned in the 1977 decision. Furthermore, the hearing examiner had all of the evidence necessary to make a full unit determination decision herein and that is what the parties -14- appeared to be seeking. APPROPRIATE UNIT DETERMINATION On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A. 966(l) and (2), the following described unit of employees of the City of Ellsworth is held to be appropriate for the purpose of collective bargaining: INCLUDED: Deputy Fire Chief, Lieutenant, Engineer, Engineer/ Electrical Inspector and Engineer/Hazardous Material Specialist employed in the Ellsworth Fire Department. EXCLUDED: Fire Chief and all other employees of the City of Ellsworth. Dated at Augusta, Maine, this 2nd day of August, 1991. MAINE LABOR RELATIONS BOARD /s/______________________________ Marc P. Ayotte Executive Director The parties are advised of their right, pursuant to 26 M.R.S.A. 968(4) (1988), to appeal this Order to the Maine Labor Relations Board. To ini- tiate such an appeal, the party seeking appellate review must file a notice of appeal with the Board within fifteen (15) days of the date of the issuance of this report. See Board Rules 1.12 and 7.03. -15-