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-