MSEA v. State of Maine, Dept. of Public Safety, 97-UC-02C, appeal dismissed 98-UCA-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 97-UC-02C Issued: November 6, 1997 ____________________________________ ) MAINE STATE EMPLOYEES ASSOCIATION, ) LOCAL 1989, SEIU, ) ) Bargaining Agent and Petitioner, ) ) and ) UNIT CLARIFICATION ) REPORT STATE OF MAINE, DEPARTMENT OF ) PUBLIC SAFETY, ) ) Public Employer. ) ____________________________________) INTRODUCTION This is a unit clarification proceeding that was initiated on January 21, 1997, when Jack Hunt, Esq., a representative of the Maine State Employees Association, Local 1989, SEIU, (hereinafter referred to as "Union"), filed a petition for unit clarification with the Maine Labor Relations Board ("Board") pursuant to section 979-E(3) of the State Employees Labor Relations Act ("Act" or "SELRA"), 26 M.R.S.A. ch. 9-B. The Union's petition sought to have the seven employees in the position of Public Safety Inspector I in the Department of Public Safety who were formerly classified as Fire Inspectors ("former Fire Inspectors") reassigned from the Administrative Services bargaining unit to the Law Enforcement Services bargaining unit. Prior to commencement of the formal hearing, the parties met with the hearing examiner to explore the possibility of settle- ment and, in the alternative, to offer exhibits into evidence and formulate stipulations of fact. HEARING After due notice an evidentiary hearing on the petition was held by the undersigned hearing examiner on August 14, 1997, at the Board's conference room in Augusta, Maine. Jack Hunt, Esq., -1- _________________________________________________________________ appeared on behalf of the Maine State Employees Association. Sandra S. Carraher, Esq., appeared on behalf of the Department of Public Safety ("Employer"). No one requested to intervene. The Union presented as its witnesses: Ms. Sue Dion and Mr. Doug Castiglia, both Public Safety Inspector I's. The Employer presented as its witness: Mr. Gary Mather, Personnel Manager for the Department of Public Safety. The parties were given the opportunity to examine and cross- examine witnesses, offer evidence and present oral argument at the close of the hearing. JURISDICTION The Maine State Employees Association is the certified bargaining agent and the State of Maine is the public employer within the meaning of section 979-A. The jurisdiction of the hearing examiner to hear this matter and make a unit clarification decision lies in 26 M.R.S.A. 979-E(3). EXHIBITS The parties agreed to the admission of the following joint exhibits: Joint Exhibit #1 Public Safety Inspector I Job Specifications Joint Exhibit #2 1978-1980 Professional and Technical Services Bargaining Unit Collective Bargaining Agreement, list of classifications in unit (classifications not in original unit determination noted) Joint Exhibit #3 1978-1980 Law Enforcement Services Bargaining Unit Collective Bargaining Agreement, list of classifications in unit (classifications not in original unit determination noted) Joint Exhibit #4 1978-1980 Administrative Services Bargaining Unit Collective Bargaining Agreement, list of classifications in unit (classifications not in original unit determination noted) Joint Exhibit #5 1997-1999 Law Enforcement Services Bargaining -2- _________________________________________________________________ Unit Collective Bargaining Agreement Joint Exhibit #6 M.L.R.B. Notice of Agreement on Appropriate Bargaining Unit (Form 1) Reassigning Campground Ranger from the Law Enforcement Services Unit to the Operations, Maintenance and Support Services Unit Joint Exhibit #7 1997-1999 Administrative Services Bargaining Unit Collective Bargaining Agreement, list of classifications in unit Joint Exhibit #8 Class Specifications for 10 positions in Administrative Services Unit (selected by State on basis of job titles being the same as in the original unit determination): Dairy Inspector, Field Inspector, Jail Inspector, Oil Burner Inspector, Plumbing Inspector, Produce Inspector I, Produce Inspector II, Seed Potato Inspector, Senior Plumbing Inspector, and Weights & Measures Inspector Joint Exhibit #9 Class Specifications for all current positions in Law Enforcement Services Unit (all that State could locate): Baxter Park Ranger I, Capitol Security Police Officer, Capitol Security Police Sergeant, Fire Investigator, Forest Ranger I, Forest Ranger II, Forest Ranger III, Game Warden, Game Warden Assistant, Game Warden Investigator, Game Warden Pilot, Game Warden Specialist, Liquor Enforcement Officer I, Marine Patrol Officer, Marine Patrol Pilot, Motor Vehicle Investigator, Probation Officer, Probation- Parole Officer II, Ranger Pilot, Special Agent Investigator, and Special Investigator Joint Exhibit #10 1997-1999 Professional and Technical Services Bargaining Unit Collective Bargaining Agreement, list of classifications in unit Joint Exhibit #11 Class Specifications for 7 positions in Professional and Technical Services Unit (selected by State on basis of job titles being the same as in the original unit determination): Compliance Officer, Field Examiner II, Field Investigator, Fraud Investigator, Labor & Safety Inspector, Safety Compliance Officer and Tax Examiner Joint Exhibit #12 Class Specifications for 3 positions in Professional and Technical Services Unit -3- _________________________________________________________________ (selected by State as job titles not in the original unit determination): Environmental Specialist II, Securities Specialist and Human Services Enforcement Agent Joint Exhibit #13 Job Evaluation Report on Public Safety Inspector I (currently in a reallocation appeal) Joint Exhibit #14 "FJA" dated Jan. 31, 1996, creating the Public Safety Inspector I classification (8 pp.) Joint Exhibit #15 "FJA" dated May 30, 1996, placing the former Fire Inspectors into the Public Safety Inspector I classification (6 pp.) Joint Exhibit #16 Memo dated July 1, 1996, from John H. Alden, Merit System Coord. to Gary Mather, Personnel Mgr., Dept. of Public Safety Joint Exhibit #17 5-page excerpt of Dept. of Public Safety Submission to the Productivity Realization Task Force Joint Exhibit #18 Identification Badge of an incumbent inspector issued by Fire Marshal's Office Joint Exhibit #19 Identification Badge of a former fire investigator issued by Fire Marshal's Office Joint Exhibit #20 State Fire Marshal's Office organizational chart prior to Productivity Realization Task Force changes Joint Exhibit #21 Job Posting for Fire Investigator dated July 30, 1996 Joint Exhibit #22 Oath of Office for Fire Inspector Joint Exhibit #23 Application for Administrative Search Warrant Joint Exhibit #24 Fire Inspector Class Specifications dating from 1972 to 1994 Joint Exhibit #25 Fire Investigator Class Specifications dating from Dec. 1982 to Nov. 1992 Joint Exhibit #26 1993-1995 Law Enforcement Services Bargaining Unit Collective Bargaining Agreement -4- _________________________________________________________________ STIPULATIONS 1. The petitioner, the Maine State Employees Association, is the certified bargaining agent within the meaning of section 979-A(1) for the state employee Administrative Services, Law Enforcement Services, and Professional and Technical Services bargaining units. 2. The State of Maine is the public employer within the meaning of section 979-A(5) of all of the employees whose classification is at issue here today. 3. The parties have been unable to agree on the modifica- tion being sought through the petition and there is no question concerning representation. 4. Substantial change has occurred in that a new classification called Public Safety Inspector I was created on or about February 1, 1996. The incumbents were reclassified to the new classification effective on or about June 17, 1996, and MSEA was informed of the reclassification on or about July 1, 1996. 5. The position of Fire Inspector existing in 1976 was split into two positions, Fire Inspector and Fire Investigator, on or about October 10, 1982. FINDINGS OF FACT 1. The initial bargaining units for state employees were established by the Executive Director of the Board in a unit determination report dated September 22, 1976. Seven bargaining units were created at that time. The bargaining unit that the former Fire Inspectors were initially place in was called the Law Enforcement, Public Safety and Regulatory Services (Non Police) Unit. 2. Subsequent to the September 22, 1976, unit determination report, the parties negotiated certain changes in the composition of the Law Enforcement, Public Safety and Regulatory Services -5- _________________________________________________________________ (Non Police) Unit. These changes resulted in a number of classifications being removed from that unit and placed in the Professional and Technical Services Unit or in the Administrative Services Unit. The purpose of this change was to keep the primary focus of the Law Enforcement Unit on law enforcement functions and remove the regulatory functions to other units. An important criteria for retention in the unit was whether the classification in question had the power of arrest. The name of the unit was changed at this time to the Law Enforcement Services Bargaining Unit. 3. The classifications moved out of the Law Enforcement Services Unit prior to the initial collective bargaining agreement include the following: Dairy Inspector, Field Examiner, Field Investigator, Food Inspector, Jail Inspector, Labor and Safety Inspector, Liquor License Inspector, Oil Burner Inspector, Plumbing Inspector, Produce Inspector, Public Utilities Investigator, Safety Compliance Officer, Seed Potato Inspector, Tax Examiner, and Weights & Measures Inspector. 4. The position of Fire Inspector has changed over the years. At the time of the initial unit determination in 1976 and at the time of the negotiation of the initial collective bargaining agreement, the position of Fire Inspector had both fire inspection and fire investigation responsibilities. In October of 1982, the job was split into two positions: Fire Investigator and Fire Inspector. Both of the positions remained in the Law Enforcement Services bargaining unit. In the ensuing years, a series of successor collective bargaining agreements were negotiated and continued to cover both Fire Inspectors and Fire Investigators in the Law Enforcement Unit. On a number of occasions at least as early as 1992, the Fire Marshal and the Personnel Manager for the Department of Public Safety discussed their view that the Fire Inspector position no longer belonged in the Law Enforcement Unit. The Personnel Manager said that "it wasn't worth going through the [unit clarification] process." -6- _________________________________________________________________ The substance of such discussions was not communicated to the Union at the time. 5. The job descriptions for the Fire Inspector suggest the transformation of the classification's job functions over the years: A. In 1972, the Fire Inspector job description lists as examples of work performed the following: Inspects/investigates fire and life safety hazards in public and private buildings . . . by visually observing electrical, mechanical and fire protection systems, structural features . . . and adequacy of fire exits and by the use of technical equipment . . . in order to identify and report all fire and life safety hazards, and to determine compliance with appropriate codes and statutes. Investigates fires and explosions in order to determine if cause is accidental, fraudulent, or from other criminal action. This is done by determining point of origin, type and form of material ignited, source of heat of ignition and act of error or omission. Inspects/investigates the transportation, handling, storage and dispensing of explosive and flammable liquids and gases in order to determine compliance with appropriate codes and statutes. Inspects/investigates circuses, carnivals, race tracks and other amusement activities for flame retardant tents, appropriate safety devices on mechanical rides, structural safety of stands and retaining walls and adequate fire protection devices in order to ensure public safety and compliance with appropriate codes and statutes. Performs related work as required. B. The primary tasks listed in the Fire Inspector job description remained essentially the same until 1982. At that time the position of Fire Investigator was -7- _________________________________________________________________ created and the tasks listed for the Fire Inspector were the following: Receives and reviews request of inspection of properties received from Bureaus of Resource and Development, Hospital Licensing, the Office of Alcohol and Drug Abuse Prevention, and the Department of Corrections, and as assigned by the Fire Marshal's Office. Inspects, reinspects, analyzes and files written reports on a timely basis for education facilities, business occupancies, mercantile occupancies, storage occupancies, places for transporting flammable liquids or explosives, circuses, carnivals, traveling amusement shows, motor vehicle race tracks, fireworks displays and mechanical rides, as directed by the Fire Marshal, using National Fire Protection Association's Fire Codes and State Statutes, in order to identify violations for correction to assure compliance as required by State Statutes. Reviews and submits written inspection to Fire Marshal's Office, using proper inspection forms within five working days of inspections, to insure owners of properties will receive written deficiencies in a reasonable time frame. Receives, reviews, performs and revisits inspections as requested, using original inspection forms and public relation skills, in order to insure deficiencies are being corrected in a timely manner. Coordinates inspections between Fire Marshal's Office and local fire departments. Instructs and trains inspectors of local fire departments, using statutes and adopted codes, in order to insure uniformity of inspections throughout the State. Receives preliminary training and assists in the investigation of fires and explosions as assigned by his/her immediate supervisor, using knowledge of chemistry/physics of fires, hand tools, electronic equipment, in order to assist in the resolution of possible criminal action. -8- _________________________________________________________________ Makes primary determination on the cause/origin of fires, excluding criminal investigation, using knowledge of fire behavior and instruments to identify where and how fire started. Writes and submits basic cause determination reports, using notes of cause/origin inspection in order to prepare permanent record of incident. C. The current job description for the Public Safety Inspector I includes both fire inspection and liquor licensing functions. The fire inspection activities are essentially the same as before. The inspector also assists in the investigation of criminal actions and determines the origins of fires in other than criminal investigations. 6. Although there are similarities in the jobs, the distinguishing feature of the Fire Investigator classification is the responsibilities regarding investigation of criminal behavior. A. The Fire Investigator job description listed the following as representative tasks when the position was created in 1982: Inspects/investigates fire and life safety hazards in public and private buildings . . . by visually observing electrical, mechanical and fire protection systems, structural features . . . and adequacy of fire exits and by the use of technical equipment . . . in order to identify and report all fire and life safety hazards, and to determine compliance with appropriate codes and statutes. Investigates fires and explosions in order to determine if cause is accidental, fraudulent, or from other criminal action. This is done by determining point of origin, type and form of material ignited, source of heat of ignition and act of error or omission. -9- _________________________________________________________________ Inspects/investigates the transportation, handling, storage and dispensing of explosive and flammable liquids and gases in order to determine compliance with appropriate codes and statutes. Inspects/investigates circuses, carnivals, race tracks and other amusement activities for flame retardant tents, appropriate safety devices on mechanical rides, structural safety of stands and retaining walls and adequate fire protection devices in order to ensure public safety and compliance with appropriate codes and statutes. Performs related work as required. B. In 1983 the investigatory functions of the Fire Investigators were elaborated upon with the following addition to the job description: Investigates fires and explosions to determine person(s) responsible for the criminal act through approved interview and interrogation techniques in order to bring the case to prosecution through the District Attorney or Attorney General and acts as an expert witness in the case. C. By 1992 the job description for the Fire Investigator included the following as representative tasks: Investigates fires and explosions in order to determine if cause is accidental, fraudulent, or from other criminal action. Inspects and investigates fire and life safety hazards in public and private buildings in order to identify and report all fire and life safety hazards and determine compliance with appropriate codes and statutes. Inspects and investigates the transportation, handling, storage, and disposal of hazardous materials, explosives, and flammables in order to determine compliance with appropriate codes and statutes. Inspects and investigates circuses, -10- _________________________________________________________________ carnivals, race tracks, and other amusement activities in order to ensure public safety and compliance with appropriate codes and statutes. Interviews and interrogates complaints, suspects, and witnesses in order to develop information and evidence. Writes and submits investigative reports, photographs, and other evidence in order to document cases. Testifies as an expert witness in order to provide evidence and assist in the prosecution of cases. 7. In January of 1996, a plan was presented to the Productivity Realization Task Force to consolidate the functions of fire inspection with liquor licensing and place those functions into a single operation. Under this proposal, two job classifications, Fire Inspector and Liquor Licensing Examiner, would be merged into one classification called Public Safety Inspector I. On about February 1, 1996, the FJA implementing this change was approved. On about June 17, 1996, the FJA moving the incumbents into the newly created Public Safety Inspector I position was approved. The Union was notified of this change sometime around July of 1996. The Employer assigned the new classification to the Administrative Services bargaining unit. 8. The former Fire Inspectors were not notified of the change in their bargaining unit status until around January, 1997. 9. According to the testimony and the job specification, the primary function of a Public Safety Inspector I is to inspect and report on various businesses and public facilities in order to identify violations and to ensure compliance with National Fire Codes and state laws and to inspect facilities to ensure compliance with liquor licensing laws and regulations. With respect to fire inspection duties, the Public Safety Inspector is authorized to inspect facilities, file written reports, require a -11- _________________________________________________________________ written plan of correction from the property owner, issue summonses, confiscate fireworks and recommend close orders when the property owner has repeatedly failed to correct deficiencies. Former Fire Inspectors are experts on the subject of fire codes and nationally recognized standards. As such, they may assist Fire Investigators in the investigation of fires to determine whether a code violation was a contributing cause of the fire. 10. The Public Safety Inspector's duties related to fire inspection are essentially the same as they were when they were performed by the Fire Inspectors prior to the consolidation of functions. The only difference in duties is that the Public Safety Inspector I is not responsible for LP gas inspection and does not perform all inspections of explosive magazines and transport vehicles. 11. Most former Fire Inspectors have prior training and experience as firefighters and some have experience in the construction industry. A typical career path as perceived by Fire Inspectors would be from firefighter to Fire Inspector to Fire Investigator. The most recent opening as a Fire Investigator was not filled by a Fire Inspector but by a person from a municipal fire department. 12. The opportunity for a former Fire Inspector to promote into a Fire Investigator position is not controlled by assignment to any particular collective bargaining unit. Promotional rights are based on agency or departmental assignment. 13. The Public Safety Inspector I is within the Licensing and Inspections unit in the Administrative Services group at the Department of Public Safety. Prior to the consolidation of functions, the Fire Inspectors were part of the Fire Marshal's Office at the Department of Public Safety and used to attend regular meetings of the office. As part of the consolidation, the former Fire Inspectors were physically relocated from the Fire Marshal's Office in Augusta to offices in Gardiner. The -12- _________________________________________________________________ statute governing the Fire Marshal's Office still provides statutory authority for fire inspection activities but the Fire Marshal is no longer in the direct line of supervision for the fire inspection function. The Fire Prevention Specialist and Fire Prevention Specialist Assistant positions, both in the Professional and Technical Services bargaining unit, were also moved from the Fire Marshal's Office to the Licensing and Inspection Unit at the same time. 14. The Department of Public Safety is responsible for various law enforcement functions, including the State Police, as well as a number of other areas that are not law enforcement functions, such as Emergency Medical Services and the Bureau of Highway Safety. 15. The Department of Public Safety plans to have all of the former Fire Inspectors trained in the liquor licensing responsibilities and to have the former Liquor Licensing Examiners trained in the fire inspection duties. These plans have not been implemented, as none of the former Fire Inspectors have been cross-trained yet. 16. The former Fire Inspectors do not attend the Criminal Justice Academy, they do not carry firearms and they do not have the power of arrest. The former Fire Inspectors took an oath of office upon employment with the Fire Marshal's office. 17. The former Fire Inspectors work a standard workweek and are not required to be on 24-hour call or on standby on weekends. There have been occasions when the former Fire Inspectors have worked night details, in order to inspect nightclubs and other establishments operating primarily at night, and on holidays for fireworks confiscation. 18. The former Fire Inspectors are not required to undergo a physical fitness or a physical agility test prior to employment. There are no ongoing physical fitness requirements for the former -13- _________________________________________________________________ Fire Inspectors. The record is unclear whether a background check would be conducted on a Public Safety Inspector I applicant under current procedure. 19. The Fire Investigators and most of the other classifi- cations in the Law Enforcement Services bargaining unit attend the Criminal Justice Academy, carry firearms and have the power of arrest. 20. The Fire Investigators and most of the other classifi- cations in the Law Enforcement Unit work a non-standard work- week, are required to be on 24-hour call and on standby on weekends. The current collective bargaining agreement for the Law Enforcement Unit contains five separate side agreements covering specific issues regarding work hours for different non- standard employees. 21. Many of the classifications in the Law Enforcement Unit are required to undergo a background check or a physical agility test (or both) prior to employment. The current Law Enforcement Services collective bargaining agreement creates a labor management committee for a Physical Fitness Assessment Program. 22. The former Fire Inspectors were all issued uniforms when they were hired into that classification. The Fire Inspectors were required to wear the uniforms in most situations. As Public Safety Inspectors, the former Fire Inspectors continue to receive a clothing allowance to cover the costs of cleaning their uniforms. 23. The former Fire Inspectors were assigned a state vehicle that, prior to January of 1997, they were permitted to use for personal business when not on duty. In January 1997, the former Fire Inspectors were informed that they could no longer use their assigned state vehicle for personal business after hours or on the weekend. 24. A common theme throughout all of the job specifications -14- _________________________________________________________________ for classifications in the Law Enforcement Services Bargaining Unit is the responsibility for conducting criminal investiga- tions, gathering evidence and presenting that evidence in a written report or testifying in court. These law enforcement officers must be knowledgeable about procedural due process requirements and issues concerning admissibility of evidence. The complaints and investigations articles of the Law Enforcement Services collective bargaining agreements have always had unique features reflecting this heightened awareness. 25. The former Fire Inspectors must travel to various locations to perform their inspections and are sometimes required to inspect premises where the owners or residents are hostile to government officials. There is some danger of exposure to infectious diseases when inspecting health care facilities. 26. There are a number of classifications in the Administrative Services Unit whose primary function is inspection such as Plumbing Inspector, Oil Burner Inspector, Jail Inspector, Dairy Inspector, Weights & Measures Inspectors, Produce Inspectors, Seed Potato Inspectors and Field Inspectors. Each of these classifications requires knowledge of state and federal laws and regulations and applicable National Codes or Standards. For example, Jail Inspectors must be knowledgeable about the American Correction Association Standards and federal and state laws and regulations of jail standards and Plumbing Inspectors must have a master plumber's license. In addition to the inspection function, the job specification for the Oil Burner Inspector includes assisting the Fire Marshal's Office in fire and arson investigations to identify oil and fuel system malfunctions. Generally, these classifications are responsible for enforcing a particular area of law by determining whether a party is in compliance with the applicable code or regulation. Individuals in these classifications do not have the power of arrest but they do have authority to certify or withhold certification or require corrective action. These jobs involve -15- _________________________________________________________________ working with the public in a variety of situations to inform them of the relevant standards and to ensure that corrective steps are taken. DISCUSSION Preliminary Matters The petition in this case was filed pursuant to section 979-E(3) of the Act. That provision of the Act states: Unit clarification. Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composition of that bargaining unit, any public employer or any recognized or certified bargaining agent may file a petition for unit clarification, provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation. The parties have stipulated facts indicating that at least three of the four requirements for filing a unit clarification petition have been met--the petition was filed by the certified bargaining agent, the parties are unable to agree upon the modifications, and there is no question concerning representation. The fourth requirement for filing a unit clarification petition is that there have been alleged changed circumstances surrounding the formation of the bargaining unit. In 1982, the Fire Inspector classification that was originally placed in the Law Enforcement Unit in 1976 was split into two different classi- fications (Fire Inspector and Fire Investigator). After the split, both classifications remained in that unit. In 1996, a new classification called Public Safety Inspector I was created which consolidated the functions of the former Fire Inspectors and Liquor Licensing Examiners. This new classification was placed in the Administrative Services bargaining unit by the employer. -16- _________________________________________________________________ The creation of a new job classification normally meets the requirement for changed circumstances as it is impossible to consider the bargaining unit status of a position before it exists. Maine State Employees Association and State of Maine, Department of Inland Fisheries and Wildlife, No. 83-UC-43 and 91-UC-11, slip op. at 8 (Me.L.R.B. May 4, 1993), citing Portland Public Library Staff Assoc. and Portland Public Library, No. 88-UC-03, slip op. at 9 (Me.L.R.B. June 2, 1988). Merely renaming a position, however, is not considered a sufficient change to justify modification to a unit even if there are minor changes in the duties and responsibilities of the position. Portland Public Library, supra, slip op. at 9 (renaming the Office Assistant in Administration Office to Secretary to the Assistant Director not sufficient change when only difference is to whom the clerical support is provided). In this case, the position of Public Safety Inspector I was created on February 1, 1996, and the former Fire Inspectors and former Liquor Licensing Examiners were reclassified into Public Safety Inspectors on about July 1, 1996. The job description for the Public Safety Inspector I includes most of the responsibil- ities previously held by Fire Inspectors and Liquor Licensing Examiners. The record indicates that following this reclassifi- cation, the duties of the former Fire Inspectors changed somewhat in that they no longer inspect all explosive magazines and LP gas storage facilities. The former Fire Inspectors have not been cross-trained in the liquor licensing function and it does not appear that the former Liquor Licensing Examiners have been cross-trained either. If the change in job duties following the reclassification were the only basis for seeking a modification to the bargaining unit, I would be hard pressed to find that change sufficient. In both unit determination and unit clarification contexts, arguments based upon the intention to treat or utilize employees in certain ways in the future have repeatedly been rejected. -17- _________________________________________________________________ M.S.A.D. No. 14 and East Grand Teachers Ass'n., MLRB No. 83-A-09, slip op. at 9, 6 NPER 20-14036 (Aug. 24, 1983); Dept. of Public Safety and Maine State Employees Association, No. 83-UC-45 and 91-UC-45, slip op. at 17 (Me.L.R.B. Feb. 4, 1994). Just as the Board considers future duties and responsibilities to be too speculative to serve as the basis for exclusion from a unit, it would be improper to rely on unimplemented plans to cross-train and consolidate functions sometime in the future in making a unit clarification decision. In this case, however, it is not necessary to analyze the scope of the changes in the job duties arising from the reclassification because the record shows that the changes to the Fire Inspector classification made in 1982 are sufficient to constitute a substantial change for unit clarifica- tion purposes. Either party could have petitioned for unit clarification subsequent to the creation of the Fire Investigator position and the alteration of the Fire Inspector position in 1982. The trigger for the current petition by the Union was the placement of the new classification in the Administrative Services Unit following the 1996 reclassification. The threshold requirement of sufficient change that serves as the basis for this petition is the 1982 change in duties, not the 1996 reclassification. The Union argues that the 1996 reclassification of the Fire Inspector position into the Public Safety Inspector position was bogus because the duties performed by the former Fire Inspectors are essentially the same as the duties they performed before the reclassification. The Union argues that the resulting reassignment to the Administrative Services Unit is therefore improper. As the State so strenuously pointed out, this argument is being made before the wrong forum. There is an established procedure for contesting the appropriateness of a reclassification and that procedure does not involve the Maine Labor Relations Board. As far as the Maine Labor Relations Board is concerned, when the employer creates a new classification, the employer is entitled to place -18- _________________________________________________________________ that new position in a bargaining unit.[fn]1 In this case, that is just what the employer did. This proceeding is to determine whether the placement was appropriate, not whether the reclassifi- cation was appropriate. The Union also argues that the changes made in 1982 to the former Fire Inspectors job should not be considered because the State has signed a number of collective bargaining agreements covering the Law Enforcement Services Bargaining Unit that continued to include the Fire Inspector classification. These agreements were signed even though the department's personnel manager recognized that a unit clarification petition was justi- fied. In essence, the Union's argument is that in acquiescing to the continued inclusion of the classification in the unit, the State is precluded from using the 1982 changes to support the placement of the classification in the Administrative Services Unit. This argument, if accepted, would turn the established policy favoring the alteration of bargaining units through negotiations on its head. SELRA includes a statutory preference that unit placement issues be resolved by agreement of the parties, a preference that is also reflected in Board Rule 1.16 regarding unit clarification matters. Rule 1.16(A)(2) permits the dismissal of a unit clarification petition if it requests changes "which could have been but were not raised prior to the conclusion of negotiations which resulted in an agreement containing a bargaining unit description."[fn]2 This rule fosters improvement in the relationship between the parties by promoting predictability and stability during the term of the collective bargaining agreement. See, e.g., Department of Inland Fisheries and Wildlife and Maine State ____________________ 1 Unless, of course, the employer's reclassification of a position and unit assignment constitutes a prohibited practice. 2 The application of this aspect of Rule 1.16 is not in question here because there was no agreement in effect at the time the petition was filed. -19- _________________________________________________________________ Employees Association, Nos. 83-UC-43 and 91-UC-11, slip op. at 9-10, (Me.L.R.B. May 4, 1993). The Union's argument that the employer should not be permitted to refer to the 1982 changes must fail because it would transform the policy favoring resolution of unit placement issues by agreement of the parties into a policy requiring negotiation of those issues. As a practical matter, a party would have to bring to the table any change that could potentially be the basis for a unit clarification, lest the Board later find that the change occurred prior to signing the agreement. In many cases where a unit clarification is based on a change in job duties, those changes have not been the result of a job reclassification but have been changes that evolved over time. For example, a clerical employee who has been excluded as a confidential employee may, over time, see less and less confidential work as technology developments enable the "confidential" manager to produce the needed documents alone. See, e.g., Lincoln Sanitary District and Teamsters Union Local 340, Case No. 92-UC-02, (Me.L.R.B. Nov. 17, 1997) (holding secretary/bookkeeper not a confidential employee where manager had sole access to confiden- tial documents in files and on word processor). Similarly, an employee may gradually assume various supervisory responsibil- ities so that eventually it may be appropriate to move that person into a supervisory unit. See, e.g., Agreement on Appropriate Bargaining Unit (MLRB Form 1) by State and MSEA dated July 1, 1993, moving Auto Mechanic Supervisor from Operations, Maintenance and Support Services Unit to the Supervisory Services Unit; MLRB Form 1 by State and MSEA dated Feb. 28, 1997, moving Forester II (Bureau of Public Lands) and Nurse IV (Maine State Prison) from the Professional-Technical Services Unit to the Supervisory Services Unit. It may not be entirely clear when these changes are underway whether an impartial fact finder would conclude that a modification is appropriate. Accepting the Union's argument would force a party to raise a unit clarifica- tion issue at the bargaining table at the first hint of change. -20- _________________________________________________________________ To do otherwise would risk a later determination that there was sufficient change at that time and the subsequent collective bargaining agreement precluded any future attempt to clarify the unit. There is nothing in the Act or Board precedent to suggest that units are carved in stone to the extent the Union calls for in this case. The availability of the unit clarification procedure in section 979-E(3) of the Act indicates just the opposite. In addition, the Board addressed this point directly in affirming a hearing examiner's decision that a new unit of Department of Corrections employees should not be severed from an existing unit. The Board stated: This decision does not mean, nor should it be read to imply, that the composition or the number of State employee bargaining units established in 1976 can never be altered. . . . With the passage of time, changes may transpire which will affect one or more of the component community of interest factors for the classifications in a given bargaining unit and, therefore, the relationship or affinity among said classifications will also change. Teamsters Local Union No. 48 and State of Maine (Institutional Services Unit) and Council No. 74, AFSCME and Maine State Employees Association, No. 84-A-02, slip op. at 4-5 (Me.L.R.B. April 2, 1984). In summary, the threshold requirement of changes in circum- stances since the formation of the unit has been met and there is no basis for ignoring changes that occurred many years ago. Community of Interest In determining appropriate bargaining units, the Board's primary goal is to ensure that the employees in each unit have a substantial mutual interest in wages and other terms and condi- tions of employment. Lewiston Firefighters Association, 354 A.2d 154, 161 (Me. 1976). This "community of interest" provides for compatible goals among unit members which, in turn, strengthens -21- _________________________________________________________________ the bargaining position of the employees as a group. Id. The focus on community of interest is necessary in unit clarification proceedings as well as initial unit determinations. 26 M.R.S.A. 979-E(2). There are eleven factors that must be considered, at a minimum, in determining whether employee classifications at issue share the requisite community of interest: (1) similarity in the kind of work performed; (2) common supervision and determination of labor relations policy; (3) similarity 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 the qualifications, 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. Board Rule 1.11(F). In the Unit Determination Report dated September 22, 1976, the Executive Director of the Board described the community of interest in the Law Enforcement, Public Safety and Regulatory Services (Non Police) unit created on that date: This unit includes job classifications involved with law enforcement and other public safety and regulatory functions, excluding State Police personnel. Many of these employees are subject to call backs and frequently work a nonstandard work week. Their work may require the wearing of a uniform and their job duties may involve an element of personal danger. Many of these employees enjoy a retirement plan which is different from that which is accorded to "regular" state employees who work standard work weeks under conditions where there is no common element of personal danger associated with job performance. Moreover, these employees perform their services away from a set office environment and are frequently called upon to travel to general or specified locations in order to perform their services. Employees in this unit receive varying degrees of special training in various aspects of law enforcement. -22- _________________________________________________________________ Some of these employees are required to be in good physical condition although this is not necessarily a condition of employment and they must be free of psychological problems or blemishes on their personal records. These employees are frequently supervised by immediate supervisors who have been promoted through the ranks. These employees may not perceive themselves as either white or blue collar workers but as specialized professionals whose work experience and qualifications are unique to the services they are required to perform. They have special interests in hours of work, uniform allowances, holiday pay, vacation scheduling, safety equipment and procedures, meal allowances, standby pay, pay for court appearances, scheduling and days off, mileage allowance, special health insurance, special retirement benefits and physical examinations. Although the parties subsequently agreed upon changes to this unit to focus it on law enforcement functions, most of the executive director's observations on the community of interest remain true today. In the same unit determination report, the Executive Director of the Board presented the following explanation of the community of interest among those employees in the Administrative Services bargaining unit: Employees in this unit generally perform their duties in an office environment and their work product may generally be described as a service, opposed to the production of product(s). Employees in this unit are commonly referred to as "white collar" workers who work with and near light office equipment during a standard- ized work week. Their career ladders, promotions and transfers are almost exclusively within this unit and they have unique interests regarding their working conditions, i.e., parking facilities, heat and air conditioning, ventilation, rest periods and facilities therefor, rest rooms, dress codes, inclement weather policy, policies concerning advancement, training and promotion, equipment replacement, cafeteria service or its proximity, and vacation schedule. There is also concern for the basic considerations of pay, retire- ment, and personnel rules. These employees generally work inside and with other employees or members of the public who share -23- _________________________________________________________________ interrelated work areas, functions and/or concerns. Employees in this unit are seldom, if ever, subject to emergency call back or standby requirements or shift work. These employees are seldom, if ever, required to supply any of the tools of their profession as these items are generally part of the office environment provided by the employer. Most of these employees have private training and/or experience which qualify them for their jobs and give them relatively high potential for transfers and promotions to other generic groupings or job titles within the bargaining unit. This unit includes a wider variety of classifications than the Law Enforcement Unit. Most of the observations here continue to apply to inspection positions as well as more traditional office classifications. Turning to the community of interest factors in the present case, the record establishes that the primary function of the former Fire Inspectors is to inspect various facilities for compliance with National Fire Codes and state law. They bring to their jobs a substantial amount of experience as former fire- fighters or in the construction trades. They are experts on the subject of the state fire codes and nationally recognized standards. They must be able to identify problems, determine the severity of the problem and the best course for its resolution, and work with the property owner to ensure that corrective action is taken. In addition, the former Fire Inspectors' expertise in fire codes and construction standards enable them to assist Fire Investigators in determining whether code violations contributed to a particular fire. With respect to the first of the eleven factors, the similarity in the work performed, the former Fire Inspectors' work is similar to the inspection function performed by a variety of other inspection positions in the Administrative Services Unit. For example, Jail Inspectors, Plumbing Inspectors, Dairy Inspectors, Oil Burner Inspectors and Weights & Measures Inspectors are classifications that all demand expertise in a particular technical area and all involve a similar inspection -24- _________________________________________________________________ function. These employees, along with other inspection positions in the Administrative Services Unit such as Produce Inspectors, Seed Potato Inspectors and Field Inspectors, must perform their inspections in a variety of locations in the field and may face a hostile reception from the property owner. They all "enforce" the law to the extent that they must determine whether the party is in compliance with the applicable code or regulation. In addition, they all have the authority to "enforce" the law to the extent that the inspector can withhold certification or require corrective action to ensure conformance with the law. The Union argues that the work performed by the former Fire Inspectors is very similar to the classifications in the Law Enforcement Unit and that the positions should be moved back to that unit. The Union contends that the former Fire Inspectors perform many of the same tasks as Fire Investigators and use the same sort of background knowledge of fire behavior and building construction to identify safety issues. The fact that the former Fire Inspectors do not have the power of arrest and do not carry guns is not important, the Union argues, because not all positions in the Law Enforcement unit have the power of arrest or the authority to carry guns. The evidence presented indicates that the work performed by the former Fire Inspectors is more like the various inspectors in the Administrative Services Unit than it is like the positions in the Law Enforcement Unit. The vast majority of the Law Enforcement Services jobs, including Fire Investigators, have the power of arrest. In addition, most of them, including Fire Investigators, are authorized to carry firearms. The former Fire Inspectors do not have the power of arrest and do not carry guns. The ability to issue summonses is inconsequential as many other officials who are not law enforcement officers may do so as well. (See, e.g., 30-A M.R.S.A. 4552 authorizing municipal code enforcement officers, plumbing inspectors and building inspectors to issue a summons to any person who violates a law that the inspector enforces.) -25- _________________________________________________________________ Furthermore, the job specifications show that one aspect of many of the jobs in the Law Enforcement Unit is the responsibility for investigating violations of law, gathering evidence, presenting that evidence in a written report or testifying in court. The former Fire Inspectors are responsible for performing inspections but they do not have any direct responsibility for investigations like Fire Investigators and the other classifications in the Law Enforcement Unit. This distinction goes to the heart of the change in the units agreed upon by the parties following the 1976 unit determination. At that time, the parties agreed that the Law Enforcement Unit should be limited to law enforcement functions and that classifications responsible for regulatory inspections should be moved to other units. Here, the former Fire Inspectors have a minor role in assisting in some investigations, but their primary role is clearly a regulatory function. The assistance they provide to Fire Investigators on the scene of a fire is comparable to the expert assistance provided to the Fire Marshal's Office by Oil Burner Inspectors. Overall, the work performed by the former Fire Inspectors is much more similar to classifications in the Administrative Services Unit performing regulatory inspections than it is to the work performed by Law Enforcement Unit members. The second and third community-of-interest factors, common supervision and determination of labor relations policy and similarity in scale and manner of determining earnings, are not particularly significant in this case. The Department of Public Safety includes some classifications that are in the Administrative Services Unit and others that are in the Law Enforcement Unit. The range of earnings for the former Fire Inspectors is not significantly out of line with either of the two units. The manner of determining earnings is the same for both units, i.e., employees progress from step to step in the salary grade on the basis of satisfactory job performance. The fourth factor to consider in making a community-of- interest determination is the degree of similarity in employment -26- _________________________________________________________________ benefits, hours of work and other terms and conditions of employment. This factor supports a finding that the former Fire Inspectors share a community of interest with the Administrative Services bargaining unit. The former Fire Inspectors, like most positions in the Administrative Services unit, work a standard workweek and are not required to be on 24-hour call or to be on standby on weekends. There have been occasions where the former Fire Inspectors worked night details in order to be able to inspect nightclubs and other such establishments, but generally this has not been the case. There is no physical agility test required prior to employment as a Fire Inspector nor is there any physical fitness standard applied as a condition of continued employment. Like other inspectors in the Administrative Services unit, the former Fire Inspectors are required to travel to different locations to perform their duties. In all of these respects, the former Fire Inspectors share a community of interest with many classifications in the Administrative Services unit, and share a strong community of interest with other inspection positions in that unit. Very few of the issues related to benefits, hours of work or other terms and conditions of employment noted in the executive director's decision dated September 22, 1976, establishing the initial Law Enforcement Unit are applicable to former Fire Inspectors. Unlike the former Fire Inspectors, many of the classifications in the Law Enforcement Unit are required to work a non-standard workweek and have issues regarding work hours that are different than members of the Administrative Services Unit. Similarly, there are physical fitness requirements that are not relevant to Administrative Services Unit members that are very important considerations for members of the Law Enforcement Unit, as evidenced by the labor management committee created in their contract to address that issue. In addition, many of the members of the Law Enforcement Unit face an element of personal danger in performing their jobs that is well beyond the danger associated with hostility directed at government inspectors or the danger of -27- _________________________________________________________________ exposure to infectious diseases at hospitals. The Union argued that the fact that the former Fire Inspectors are issued uniforms and wear the uniforms in most situations indicates a community of interest with the Law Enforcement Unit. Given that not all classifications in the Law Enforcement Unit are required to wear uniforms and that wearing uniforms is not unheard of in the Administrative Services Unit, I do not attach much weight to this matter. Wearing uniforms may affect how an individual is perceived, but it does not affect the nature of the job performed. Similarly, taking an oath of office does not alter the nature of the job performed. The fifth factor in the community of interest analysis concerns the similarity in the qualifications, skills and training of employees. As previously noted, the former Fire Inspectors have a significant amount of expertise in fire safety issues, fire behavior and construction methods that they bring to their job. This knowledge is often gained through service as a firefighter or in the construction trades or through a combina- tion of technical training and experience. The experience and background of the former Fire Inspectors is similar to the type of expertise and background that other inspectors in the Administrative Services Unit are required to have. For example, Plumbing Inspectors must have a Master Plumber's license and Jail Inspectors must be knowledgeable about the American Correction Association Standards and federal and state laws and regulations of jail standards. The qualification and training of Fire Inspectors is substantially different than that required of classifications in the Law Enforcement Services Unit. Most of the members of the latter unit have attended the Criminal Justice Academy, a training that provides a critical foundation for law enforcement responsibilities. The fire inspectors have received an extensive amount of training but do not attend the Criminal Justice Academy. -28- _________________________________________________________________ The sixth and seventh community of interest factors, frequency of contact or interchange among the employees and geographic proximity, is not particularly telling either way. The former Fire Inspectors used to have their offices located in the Fire Marshal's Office along with the Fire Investigators. The Fire Marshal's Office is now in Augusta and the former Fire Inspectors are now located in Gardiner. There may be even less contact now between the former Fire Inspectors and Fire Investigators or other members of the Law Enforcement unit than there was before. The eighth and tenth factors (history of collective bargaining and extent of union organization) do not compel a decision either way in this unit clarification proceeding. With respect to the ninth factor, the desires of the affected employees, the former Fire Inspectors were always part of the Law Enforcement Services Bargaining Unit and clearly would like to return to that unit. This desire is understandable in light of the perceived economic benefit flowing from inclusion in the Law Enforcement Services Unit.[fn]3 To include classifications in a unit merely because certain employees desire it when the other community of interest factors weigh against it would tend to weaken rather than strengthen the bargaining position of the unit members collectively. ____________________ 3 Individual assignment of a state vehicle seems to be an important issue for the former Fire Inspectors. They perceive the entitlement to a car to be a function of bargaining unit assignment. Title 5 M.R.S.A. 7-A appears to govern the assignment of vehicles to state employees. I do not see any reference in that statute to bargaining unit assignment. It refers to "law enforcement personnel with the power of arrest regularly assigned to field duty" and other exceptions unrelated to bargaining unit status. The record also indicates some concern on the part of the former Fire Inspectors regarding the allowance provided to them for cleaning uniforms. Again, the entitlement to this allowance does not follow bargaining unit assignment but seems to be a function of whether the employer requires that the uniform be worn. The collective bargaining agreements for the Law Enforcement Services Bargaining Unit and the Administrative Services Bargaining Unit both contain provisions for a Uniform Maintenance Allowance. -29- _________________________________________________________________ The final community of interest factor, the employer's organizational structure, suggests that placement in the Administrative Services Bargaining Unit is more appropriate than in the Law Enforcement Services Unit. The fire inspection function is now performed as part of the Licensing and Inspections Unit within the Department of Public Safety. The inspection and licensing role of this Unit distinguish it from the law enforcement activities of many of the other bureaus in the department. The Union argues that because the statute creating the Fire Marshal's Office authorizes inspection functions, the inspectors must, by necessity, report to the Fire Marshal. If they are effectively still part of the Fire Marshal's Office, the argument goes, they should remain in the Law Enforcement Services Bargaining Unit like the Fire Investigators are. This argument ignores the fact that there is another fire prevention function in the new Licensing and Inspection unit that was previously in the Fire Marshal's Office. That function was performed by Fire Prevention Specialists and Assistants who were never part of the Law Enforcement Unit. Thus, even if I were to accept the claim that the former Fire Inspectors still report to the Fire Marshal, it is not an automatic indicator of alignment with the Law Enforcement Services Unit. The community-of-interest factors have been evaluated both individually and together. Having completed this analysis, I conclude that the classification of Public Safety Inspector I, including those employees formerly classified as Fire Inspectors, is appropriately placed in the Administrative Services Bargaining Unit. Nearly all of the factors either support the continued placement of the former Fire Inspectors in the Administrative Services Bargaining Unit or have no significant impact either way. These factors establishing a clear and identifiable community of interest far outweigh those issues that could support placement in the Law Enforcement Services Bargaining Unit. -30- _________________________________________________________________ ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted by 26 M.R.S.A. 979-E, it is ORDERED: The Union's petition for unit clarification is denied. The Public Safety Inspector I's who were formerly Fire Inspectors will remain in the Administrative Services Bargaining Unit. Dated at Augusta, Maine, this 6th day of November, 1997. MAINE LABOR RELATIONS BOARD /s/________________________ Marc P. Ayotte Executive Director The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 979-G(2)(Supp. 1993), to appeal this report to the Maine Labor Relations Board. To initiate 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 issuance of this report. See Board Rules 1.12 and 7.03 for requirements. -31-