AFSCME and Penobscot County Sheriff's Department. Affirming 12-UC-03. 

 

	  
	   This unit clarification appeal was filed by AFSCME Council
93 on August 30, 2013, pursuant to §968(4) of the Municipal
Employees Labor Relations Law, 26 M.R.S.A. §961 et seq., and
Chapter 11, §30 of the Rules and Procedures of the Maine Labor
Relations Board.  The Unit Clarification Report which is the
subject of this appeal was issued on August 20, 2013.  In that
proceeding, AFSCME Council 93 sought to add part-time employees
to an existing bargaining unit of the Penobscot County Sheriff's
Department Line Unit Corrections Division.  The Hearing Examiner
denied the unit clarification petition because the circumstances
surrounding the formation of the bargaining unit had not changed
sufficiently to warrant modification of the unit, as required by
26 M.R.S.A. §966(3).  AFSCME appeals that decision. 

     Written briefs were submitted by Shawn J. Sullivan, Esq.,
representing AFSCME Council 93, and by Frank T. McGuire, Esq.,
and John K. Hamer, Esq., representing Penobscot County.  The
Board members reviewed the written briefs submitted by the
parties, the Unit Clarification Report, the record of evidence
before the Hearing Examiner, and met on November 14, 2013, to
consider this appeal.  

[end of page 1]

                          JURISDICTION
                                
     AFSCME Council 93 is an aggrieved party within the meaning
of 26 M.R.S.A. §968(4) and the bargaining agent within the
meaning of 26 M.R.S.A. §962(2).  Penobscot County is a public
employer within the meaning of 26 M.R.S.A. §962(7).  The
jurisdiction of the Maine Labor Relations Board to hear this
appeal and to render a decision herein lies in 26 M.R.S.A.
§968(4).
 
                           DISCUSSION
  The standard of review for bargaining unit decisions by a
hearing examiner is well established:
     . . ."We will overturn a hearing examiner's rulings and
     determinations if they are 'unlawful, unreasonable, or
     lacking in any rational factual basis.'"  Council 74,
     AFSCME and Teamsters Local 48, MLRB No. 84-A-04 at 10
     (Apr. 25, 1984), quoting Teamsters Local 48 and City of
     Portland, MLRB Report of Appellate Review at 6
     [78-A-10] (Feb. 20, 1979).  It thus is not proper for
     us to substitute our judgment for the hearing
     examiner's; our function is to review the facts to
     determine whether the hearing examiner's decisions are
     logical and are rationally supported by the evidence.
 
MSAD #43 and SAD #43 Teachers Assoc., 84-A-05, at 3 (May 30,
1984), affirming No. 84-UC-05. 
 
     The issue on appeal is whether the Hearing Examiner was
correct in her legal conclusion that the petitioner had failed to
show a change in circumstances sufficient to justify a
modification to the existing bargaining unit, as required by the
Act.  Section 966(3) of the Municipal Public Employees Labor
Relations Law provides:
     
     3.  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

[end of page 2]

     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 a unit clarification provided that the
     parties are unable to agree on appropriate
     modifications and there is no question concerning
     representation.

       
     The requirement that the petitioner show that the circum-
stances surrounding the formation of the existing bargaining unit
have changed sufficiently to warrant a modification of the unit
is a threshold question in a unit clarification proceeding, and
the petitioner bears the burden of establishing the requisite
change.  MSAD No. 14 and East Grand Teachers Assoc., No. 83-A-09,
at 7 (Aug. 24, 1983), and State of Maine v. MSEA, No. 82-A-02, at
16 (June  3, 1983, Interim Order).
       
     In addition to these statutory requirements, the Board's
rules further provide that a unit clarification petition may be
dismissed if the question raised should properly be settled
through the election process or the issues could have been but
were not raised during negotiation of an agreement containing a
bargaining unit description.  MLRB Rule Chapter 11, § 6(3).  
       
     The statute and the Board rules impose limitations on the
unit clarification process in part because stability is promoted
when the scope of the bargaining unit remains constant during the
term of a bargaining agreement.  If a modification of the unit 
is desired, the parties are encouraged[fn]1 to raise the issue
in negotiations for a successor contract, as bargaining unit
compos-
          
     1  Section 966 as a whole and the unit clarification prerequisite
in §966(3) "that the parties are unable to agree on appropriate
modifications" establish a statutory policy to encourage parties to
agree on unit composition issues. 

[end of page 3]

ition is a proper (i.e., not illegal) subject of
bargaining.[fn]2  If an agreement is not possible, a unit
clarification may be filed, as provided by §966(3).  The
limitations on unit clarification petitions continue after the
expiration of an agreement because such petitions do not require
a submission of a showing of interest from the affected
employees, as do unit determination or election petitions.  See
MLRB Rule Chapter 11, § 7(11) and § 8; 26 M.R.S.A. § 967. If the
changed circumstances requirement did not exist, the unit
clarification process could be used after the expiration of the
agreement to change the make-up of a unit without presenting the
showing of interest that would be required for a unit
determination petition.

     The requirement of changed circumstance has as its reference
point the formation of the unit.  A classic example of a
sufficient change in circumstances is when a new job classific-
ation is created following the conclusion of negotiations.  The
Board has consistently held that a new job classification clearly
meets the required change in circumstances, as it is simply
impossible to consider the bargaining unit status of a position
before it exists.  See MSEA and State of Maine Department of
Inland Fisheries and Wildlife, Nos. 83-UC-43 and 91-UC-11, at 8
(May 4, 1993). 
     
     Similarly, a change in job duties may be a sufficient change
in circumstances if the change is substantial and pertinent to
the question of whether the position continues to be properly
included or excluded from the unit.  See discussion in AFSCME
Council 93 and Town of Sanford, No. 08-UC-02 at 15-17 (July 23,
2008).  When a party files a unit clarification petition to 

     2  If the parties are unable to agree, however, the dispute must
come off the table as bargaining unit composition is not a mandatory
subject of bargaining.

[end of page 4]

remove a classification from a unit because it allegedly falls
into one of the statutory exclusions, the change must be
pertinent to the analysis used to decide whether the position
should be excluded.  See, e.g., Maine Maritime Academy and MSEA,
No. 03-UC-02, at 12-13 (Jan. 21, 2003) (adding significant
management duties and reporting directly to Academy President
were changed circumstances and were relevant to whether position
was statutorily excluded); modified on other grounds, No.
03-UCA-01 (May 15, 2003); and Lincoln Sanitary District and
Teamsters Local 340, No. 92-UC-02 (Nov. 17, 1992) (secretary's
new duty to type documents on employer's negotiation strategies
raised question as to whether position was statutorily excluded
as "confidential" employee).
 
     On the other hand, merely renaming a position and making
minor changes in its duties and responsibilities does not
constitute a sufficient change to warrant modification in the
composition of a bargaining unit through a unit clarification
petition.  For example, in Portland Public Library Staff
Association and Portland Public Library, even though some duties
were changed, the basic character of the positions remained
essentially unchanged since the negotiation of the most recent
agreement.  No. 88-UC-03, at 9 (June 2, 1988).  Similarly, in
AFSCME and Town of Sanford, the union sought to add the General
Assistance Director to the existing unit because of a reorganiz-
ation returning the position to a full-time job after a few years
of having the duties essentially split between the finance
director and the caseworker.  AFSCME and Town of Sanford, No.
08-UC-02, at 18 (July 23, 2008).  The hearing examiner noted that
the position was expressly excluded from the unit when it was
created 20 years previously, and there was no evidence that the
union had ever attempted to include the position in the unit. 
Id. at 13.  The only change was that someone had again been hired 

[end of page 5]

to perform the position full-time and the amount of casework
performed had increased over the most recent period.  Id. at
14-15.  The hearing examiner concluded that this was not a
substantial change because "the essence or primary functioning of
the position has not changed since the formation of the
bargaining unit."  Id. at 18.  The hearing examiner noted that
the changes were insignificant when considering the duties the
position had historically performed and were not pertinent to any
argument that the position should be considered for placement in
the unit mid-term after so many years of being excluded by
agreement of the parties.  Id. at 17.
 
     When positions have historically been excluded from a unit
by choice, the underlying reason or reasons for that decision may
not be as apparent as when the exclusion is based on a statutory
exclusion or a decision issued under §966.  A long and silent
history of exclusion (or inclusion) suggests a certain degree of
stability in the bargaining relationship.  To change the status
of a classification without a substantial showing of changed
circumstances would be an improper use of the unit clarification
procedure.  This is similar in import to ensuring that the
showing-of-interest requirement is met when attempting to add
positions to an existing unit through a unit determination
petition.  Mountain Valley Educ. Assoc./MEA/NEA and MSAD #43, No.
94-UD-13 (Nov. 3, 1994)(holding that the showing-of-interest must
come from the classifications sought to be added to a unit, not
from the unit being expanded); and Cumberland County v. Teamsters
Union Local 340, No. 07-UDA-01 (Jan. 16, 2007)(rejecting the 
employer's attempt to add the small unit proposed by the union to
an existing larger unit in part because there was no showing of
interest to join that larger unit.) 
      
     In the present case, the Hearing Examiner made several
factual findings relevant to the changed circumstances analysis 

[end of page 6]

which are not in dispute:  The Sheriff's Department Employees
Unit was created in 1981; the most recent collective bargaining
agreement between AFSCME and Penobscot County, effective from
August 15, 2008 through December 31, 2010, had a recognition
clause referring to all regular full-time employees in the unit;
there was no mention in that agreement that part-time employees
were covered; and on October 19, 2009, the parties filed an
Agreement on Appropriate Bargaining Unit splitting the Line Unit
Corrections Division from the larger unit.  Report at 4.  The
Hearing Examiner's findings on the average hours worked by
part-time employees in 2008 through 2012 are not in dispute, nor
are total number of hours worked by part-time employees for the
same period.  Report at 7.
 
     On appeal, AFSCME contends that the Hearing Examiner made an
error of law in concluding that AFSCME had failed to demonstrate
changed circumstances sufficient to warrant modification of the
bargaining unit.  AFSCME argues that the Hearing Examiner's
failure to recognize the significance of the recent increase in
hours worked by part-time employees is an error of law.
      
     In her Unit Clarification Report, the Hearing Examiner noted
the similarities with the facts in the Sanford case, where the
"essence or primary functioning of the position" had not changed. 
Report at 10, citing No. 08-UC-02 at 18.  The Hearing Examiner
concluded that changed circumstances had not been established by
the petitioner because, 
 
     . . . there is no evidence that the use of part time
     employees and the duties incumbent upon them have
     changed over the 30 year history that the part time
     workers have been an essential part of the County's
     corrections work force, notwithstanding fluctuation in
     the number of part time employees and the total number
     of part time hours worked per year.  

Report at 10.  

[end of page 7]

      AFSCME argues that a significant change in circumstances is
demonstrated by looking at the total hours of part-time employees
expressed in terms of full-time equivalents ("FTE").  AFSCME
calculates the number of FTE's by dividing the total part-time
employee hours worked by 2020, obtaining a figure of 9.4 FTE's
for 2008 and 13.0[fn]3  FTE's for 2012.  This increase in
full-time equivalents, AFSCME argues, should be considered a
sufficient change to proceed with the unit clarification
petition.  AFSCME's argument is unavailing, as the data for the
years between 2008 and 2012 show fluctuation, whether that data
is presented as raw totals or in terms of FTE's.  The Hearing
Examiner concluded that during the period in question the hours
worked fluctuated over the five years of data, and that the
fluctuations did not override the fact that there was no evidence
that the use of or duties of the part-time employees had changed. 
We find no error in the Hearing Examiner's legal conclusion that
the changes in the hours worked by part-time employees during
this period was not a sufficient change in circumstances to
warrant proceeding with the unit clarification.

     AFSCME further argues that the unique circumstances of the
case justify granting the unit clarification petition, as the
hearing examiner did in AFSMCE Council 93 and State of Maine, No.
89-UC-07 (Aug. 10, 1990), aff'd No. 91-UCA-02 (Feb. 12, 1991), 
aff'd sub nom Bureau of Employee Relations v. MLRB, 611 A.2d 59
(Me. 1992).  Reliance on that case for the proposition that a
remedy should be made available is misplaced, as it involved the
denial of the protections of the statute through improperly 

     3  AFSCME misstated this figure as 13.4 ; 27,132  2080 = 13.04 .


     4  The Hearing Examiner's factual findings shows the fluctuation
in total hours worked:  The hours worked by part-time employees rose
from 19,550 hours in 2008 to 25,800 hours in 2009 and 26,353 hours in
2010, back down to 19,830 hours in 2011, and up to 27,132 in 2012.

[end of page 8]

classifying employees as temporary, seasonal or on-call, that is, 
employees who are excluded from coverage of the collective
bargaining statute.[fn]5  In the present case, the part-time
employees have not been denied any protections of the Act.  The
part-time employees are free to organize themselves into a
bargaining unit by filing a unit determination and election
petition.  As they are not part of an existing bargaining unit,
there is no contract bar to the creation of their own bargaining
unit.  They may wish to be a separate bargaining unit, or they
may wish to eventually merge with the bargaining unit of the Line
Unit Corrections Division through the process in §966(4).
     
                           CONCLUSION
                                
     The Hearing Examiner's conclusion that the petitioner had
failed to show a change in circumstances sufficient to justify a
modification to the existing bargaining unit, as required by
§966(3) of the Municipal Public Employees Labor Relations Law was
not unlawful, unreasonable, or lacking in any rational factual
basis.

                             ORDER
                                
     On the basis of the foregoing discussion and pursuant to the
power granted to the Maine Labor Relations Board by the
provisions of 26 M.R.S.A. § 968(4), it is ORDERED:

     5  In the other case cited by the appellant, Ashland Teachers
Association and MSAD No. 32 Board of Directors, No. 05-UC-02 (Oct. 19,
2005), the hearing examiner found a sufficient change in circumstances
based on the Employer's vehement objection to including part time
teachers in the unit after years of inconsistent conduct that
warranted the Union's assumption that the employer considered them
part of the bargaining unit, and where the union had specifically
raised the issue at the bargaining table in the most recent
negotiations.

[end of page 9]

          that the appeal of the Penobscot County Sheriff's
          Department, filed with respect to the Unit
          Clarification Report in Case No. 12-UC-03, is
          denied.  
     

     
Dated at Augusta, Maine, this 17th day of December, 2013.