Teamsters Local 48 and City of Portland, No. 78-A-10, affirming No. 78-UD-39 STATE OF MAINE MAINE LABOR RELATIONS BOARD MLRB No. 78-A-10 [Issued: February 20, 1979] _____________________________ ) TEAMSTERS LOCAL UNION NO. 48,) STATE, COUNTY, MUNICIPAL AND ) UNIVERSITY EMPLOYEES ) ) REPORT OF APPELLATE REVIEW OF and ) UNIT DETERMINATION HEARING ) CITY OF PORTLAND ) _____________________________) This case originally came to the Maine Labor Relations Board ("Board") by way of a Petition for Appropriate Unit Determination filed May 31, 1978 by Richard R. Peluso, International Trustee, Teamsters Local Union No. 48 ("Local No. 48"). By its Petition, Local No. 48 sought formation of a proposed bargain- ing unit composed of certain Division Heads employed in the City of Portland's ("City") Parks and Recreation, Public Works, and Aviation and Public Buildings Departments. On August 30, 1978, a hearing examiner for the Board conducted a unit determ- ination hearing on the matter, pursuant to 26 M.R.S.A. 966. No witnesses or documentary evidence were presented by Local No. 48 at this hearing. The repre- sentative for Local No. 48 present at the hearing stated to the hearing examiner that in the event the hearing examiner's report of the hearing was appealed to the full Board, Local No. 48 would subpoena several witnesses to testify at the appellate hearing. The City presented three witnesses and documentary evidence during the hearing, and submitted the testimony of a fourth witness by affidavit subsequent to the hearing. On September 13, 1978 the hearing examiner issued his Unit Determination Report on the proceeding. The hearing examiner ruled in the Report that the Division Head classifications were not appropriate for inclusion in the proposed bargaining unit because the employees holding these classifications were exempted from the definition of "public employee" in the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. 961, et seq., ("Act"), by Section 962(6)(C) and (D) of the Act. The hearing examiner accordingly ordered that Local No. 48's Petition for Unit Determination be dismissed. Local No. 48 appealed this Unit Determination Report pursuant to 26 M.R.S.A. 968(4) by filing a timely notice of appeal on September 22, 1978. The Board commenced a hearing on the appeal on November 20, 1978 in Portland, Maine, Alternate Chairman Donald W. Webber presiding, with Employer Representative Paul D. Emery and Employee Representative Michael Schoonjans. Present at the hearing for Local No. 48 were: Jonathan G. Axeirod, Esq. Counsel for Local No. 48 Robert L. Maier Representative of Local No. 48 Eight Division Heads employed by the City who were potential witnesses [-1-] __________________________________________________________________________________ Present for the City were: James J. Purcell , Esq. Counsel for the City Michael C. Wing Assistant City Manager Gloria L. Thomas Labor Relations Administrator for the City Counsel for Local No. 48 contended in his opening statement that the hearing examiner erred in his Report by finding that the Division Heads were exempted from the Act's definition of "public employee." Counsel for the City in his opening statement presented two motions. First, counsel moved that the notice of appeal be dismissed on the ground that Local No. 48 lacked standing to appeal because, having failed to present any evidence in support of its Petition before the hear- ing examiner, Local No. 48 was not "aggrieved" by the hearing examiner's Report within the meaning of Section 968(4) of the Act. Second, counsel for the City moved to exclude all evidence which Local No. 48 might seek to offer at the appellate hearing before the Board, on the ground that such evidence was inadmis- sible because it had not been presented at the unit determination hearing. At the close of the opening statements, the parties agreed that the Board could decide the City's motions before proceeding with the hearing. The Board accordingly continued the hearing, and set a briefing schedule on the motions. All briefs were received by January 12, 1979, and the Board proceeded to deliberate over the case at a conference held in Portland, Maine on February 5, 1979. FINDINGS OF FACT After reviewing the record of the November 20, 1978 appellate hearing and the September 13, 1978 Unit Determination Report, we find that: 1. On May 31, 1978 a Petition for Appropriate Unit Determination was filed with the Board by Local No. 48. The Petition alleges that certain Division Head job classifications in the City of Portland's Parks and Recreation, Public Works, and Aviation and Public Buildinqs Departments are appropriate for inclusion in a proposed bargaining unit. A unit determination hearing concern- ing the Petition was held on August 30, 1978. 2. Local No. 48 presented no testimony or documentary evidence regarding the Petition at the August 30, 1978 unit determination hearing. The City presented the testimony of three witnesses and offered documentary evidence at the hearing, and subsequently submitted the testimony of a fourth witness by affidavit. 3. The Unit Determination Report on this matter was issued September 13, 1978, finding that the Division Head job classifications were not appropriate for inclusion in the bargaining unit because the Division Heads are exempted from the Act's definition of "public employee" by 26 M.R.S.A. 962(6)(C) and (D), and ordering that the Petition for Unit Determination be dismissed. 4. Local No. 48's notice of appeal of the September 13, 1978 Unit Determination Report was timely filed on September 22, 1978. 5. At the appellate hearing on this matter convened on November 20, 1978, counsel for the City in his opening remarks moved that the notice of appeal be dismissed and that all evidence which Local No. 48 sought to offer be declared inadmissable and excluded from the record. The parties agreed that the Board could decide these motions before proceeding with the appellate hearing. -2- __________________________________________________________________________________ DISCUSSION After carefully reviewing the record of the November 20, 1978 appellate hearing, the September 13, 1978 Unit Determination Report, the applicable statutory provisions, and the parties' briefs, we are of the opinion, for the reasons discussed below, that the City's motion to dismiss must be denied and the motion to exclude new evidence granted. Because Local No. 48 would not be able to present any evidence at an appel- late hearing before the Board, and because the hearing examiner correctly found on the record before him that the Division Heads are excepted from the Act's definition of "public employee," we will not schedule an appellate hearing on the merits of the appeal but will instead affirm the September 13, 1978 Unit Determination Report and deny Local No. 48's notice of appeal. 1. The Motion to Dismiss. We cannot agree with the City's argument in its brief that Local No. 48 lacks standinq to prosecute this appeal because it failed to present any evidence at the August 30, 1978 unit determination hearing. Section 968 (4) of the Act provides in pertinent part that "Any party aggrieved by any ruling or determination of the executive director, or his designee, under sections 966 and 967 may appeal . . ." Here the hearing examiner ruled pursuant to Section 966 that the job classifications proposed to be included in the bargaininq unit were not appro- priate for inclusion in a bargaining unit, and dismissed Local No. 48's Petition for Unit Determination. Such rulings clearly made Local No. 48 an aggrieved party within the meaning of Section 968(4), thereby conferring standing upon Local No. 48 to appeal the hearing examiner's report. There is no requirement in Section 968(4) or in any other provision of the Act that the union (or the public employer) offer evidence at a unit determination hearing. The standard procedure at a unit determination hearing is for the union to offer evi- dence showing why a disputed job classification is appropriate for inclusion in the proposed bargaining unit, while the public employer presents evidence showing why in- clusion of the disputed classification would be inappropriate. A union could chose not to offer evidence at the hearing, hoping that the employer also does not present evidence and that the hearing examiner accepts a presumption that the disputed classi- fication is appropriate for inclusion, or that the evidence offered by the employer will not be sufficient to show that the disputed classification is inappropriate for inclusion. The risk taken by a party which does not offer evidence at a unit determination hearing is that the hearing examiner's report will be appealed. As will be discussed, infra, the parties at the appellate hearing before the Board are precluded from pre- senting any evidence which was not offered at the unit determination hearing. A party which did not offer evidence at the unit determination hearing may on appeal attempt to rebut the opposing party's case or prove that the hearing examiner committed error by cross-examining the opposing party's witnesses and/or submitting oral or written arguments, however. In short, while a party may run certain risks by not offering evidence at a unit determination hearing, one of these risks is not that the party cannot be "aggrieved" by the hearing examiner's report within the meaning of Section 968(4). -3- __________________________________________________________________________________ We do not read McNichols v. York Beach Village Corp., Law Docket No. Yor- 77-8 (Nov. 15, 1978) as requiring a finding that Local No. 48 lacks standing to prosecute this appeal. In McNichols, a civil case involving a challenge to the constitutionality of a village ordinance, the Law Court held that a plaintiff's failure to appear at trial or otherwise prove he was affected by the ordinance caused plaintiff to lose his standing to appeal to the Law Court. We do not be- lieve that this holding is applicable to a petitioner for a unit determination under 26 M.R.S.A. 966. As argued by Local No. 48 on brief, a plaintiff in a civil case carries the burden of proof, while a petitioner under Section 966 is subject to "no burdens of proof." Rule 1.09(0) of the Board's Rules and Pro- cedures. Because the petitioner at a unit determination hearing, unlike a plain- tiff at a civil trial, does not carry a burden of proof, the petitioner's failure to present evidence at the hearing is not fatal to the petitioner's right to appeal to the Board, so long as the petitioner is aggrieved by the hearing examiner's report. We consequently conclude that the Law Court's holding in McNichols is in- apposite to appeals from rulinqs rendered pursuant to 26 M.R.S.A. 966. For all of the foregoing reasons, the City's motion to dismiss Local No. 48's notice of appeal is hereby DENIED. 2. The Motion to Exclude Evidence. Much more meritorious than the motion to dismiss is the City's motion to exclude evidence. The City's argument regard- ing the motion to exclude essentially is that Local No. 48 is not entitled under the Act to a de novo hearing on appeal, and that any evidence which Local No. 48 seeks to introduce on appeal therefore is inadmissable, since no evidence was of- fered by Local No. 48 at the unit determination hearing. Local No. 48 does not contest this argument by the City, but, instead, consistent with its position at a previous appeal before this Board, joins with the City in arguing that evidence not offered at the unit determination hearing is inadmissible on appeal. Counsel for Local No. 48 stated at the November 20, 1978 hearing and in his brief that Local No. 48 will voluntarily withdraw its notice of appeal should we rule that evidence not offered at the unit determination hearing is inadmissible at the appellate hearing before the Board. The provisions of the Act which set forth the procedures for determining bargaining unit questions clearly do not entitle parties to a de novo evidentiary hearing on appeal to the Board. Because we are limited under the Act to review- ing the evidence offered to the hearing examiner, we will grant the City's motion to exclude on appeal all evidence which was not offered at the unit determination hearing. Under the Act, it is the hearing examiner and not the full Board who is dele- gated the primary responsibility for deciding disputes regarding bargaining unit matters. Section 966(1) of the Act provides in part that in the event of a dis- pute over the appropriateness of a unit or over whether a supervisory or other position should be included in the unit, "the executive director or his designee [i.e., the hearing examiner] shall make the determination . . ." (emphasis supplied). To aid in this determination, the Legislature has provided the hearing examiner in Section 966(1) with the same powers provided the full Board for deciding -4- ____________________________________________________________________________________ prohibited practice cases, i.e., the powers to administer oaths and to subpoena witnesses, books, records and other evidence pertinent to the issues raised. As noted, supra, Section 968(4) of the Act provides the right to appeal a hearing examiner's report to a party aggrieved by the report. That Section states that upon the receipt of an appeal, the Board shall conduct a hearing in the manner specified in Section 968(5)(B), which provides that the parties to a hearing have the right to give testimony. Section 968(4) also provides that after the hearing, the Board shall issue a decision which "shall either affirm or modify the ruling or determination of the executive director and specify the reasons for such action." The appellate hearing conducted by the Board pursuant to Section 968(4) thus is for the purpose of reviewing the hearing examiner's rulings and determinations, and either affirming or modifying these rulings and determinations. In ascertaining whether the hearing examiner's rulings and determinations should be affirmed or modified, the Board's task is to review the evidence upon which the hearing examiner based his decisions. New evidence not offered to the hearing examiner clearly is inadmissible for purposes of this review. There is nothing in Section 968(4) or (5) or in any other provision of the Act which suggests that the Board when hearing an appeal of a unit determination report may conduct a de novo hearing and admit new evidence not offered at the unit determination hearing. Such new evidence obviously could distort our review of the hearing examiner's report. Since the unit determination hearing is the only evidentiary hearing on unit matters provided for in the Act, it would obviously offend both the provisions of the Act and common sense to suppose that a party was entitled to two evidentiary hearings on a bargaining unit dispute - one before the hearing examiner and the second before the full Board. Thus, as we held in our Report of Appellate Review of Unit Determination Hearing in Brunswick Ass'n of Paraprofessionals and Non-Teaching Personnel and Brunswick Superintending School Comm. (1975) [No. 75-A-03]: ". . . we believe that the appeal procedure, authorized in 968, 4, of the Act, should be based on a clear and thorough review of the evidence adduced at the hearing before the Executive Director. To hold otherwise would open the appeal procedure to a continuous and never-ending flow of new allegations. Our charge is to review the Unit Determination Report of the Executive Director pur- suant to the provisions of 968, 4, of the Public Employees Labor Relations Act and, under that authority, we must look at the facts and evidence made available to the Executive Director when he acted as a hearing examiner pursuant to 966 of the Act." An important policy consideration which supports the procedures for determin- ing bargaining unit questions set forth in the Act is that it would be a waste of time and resources for the Board to be primarily responsible for determining each and every bargaining unit question which arises. In terms of expediency and ef- ficiency, such determinations are best made at the administrative level, subject to limited review by the full Board. This is the procedure followed by the National Labor Relations Board and by most public sector labor boards in the country. If the full Board were primarily responsible for making these determina- tions, resolution of our already over-burdened prohibited practice complaint docket -5- ____________________________________________________________________________________ would become hopelessly delayed. In addition, the procedures set forth in the Act also have the beneficial effect of establishing a time certain at which the parties must be prepared to present their complete case regarding a dispute over a unit matter, i.e., at the unit determination hearing. Because the Board will not admit new evidence not offered at the unit determination hearing, there should be no incentive for the parties to use the unit determination hearing to "feel out" the opposing party's case or, subsequent to the unit determination hearing, to attempt to "create a record" for use on appeal to fill gaps made evident at the evidentiary hearing. The record which we review on an appeal pursuant to Section 968(4) of the Act is the unit determination report itself, any documentary evidence offered to the hearing examiner, any admissible testimony introduced at the appellate hearing, and any briefs filed by the parties on appeal. It is standard procedure for the unit determination report to contain the names of the witnesses who testi- fied at the hearing, a description of the documents offered into evidence, and a discussion of the relevant facts and the issues of the case as perceived by the hearing examiner. We thus are able to determine by examining the unit determination report the witnesses who appeared at the hearing, the documents which were offered as exhibits, and the issues which were raised by the parties. The standard of review which we apply in an appeal under Section 968(4) of the Act is whether the hearing examiner's rulings and determinations are unlawful, unreasonable, or lacking in any rational factual basis. In the case where a party contends that the hearing examiner ignored or misinterpreted relevant facts, the parties may at the appellate hearing present witnesses who testified at the unit determination hearing to testify regarding the claim of factual error. When a party does not allege factual error but contends that the hearing examiner com- mitted an error of law, the parties may waive the appellate hearing and submit their legal arguments to the Board on brief. We recognize that on rare occasions there may be a legitimate reason why a party did not offer a particular witness or document at the unit determination hearing. If the party is able to show adequate cause justifying the failure to offer the evidence at the original hearing, then the evidence is admitted at the appellate hearing. Mere lack of preparation or failure to examine all potential witnesses or files prior to the unit determination hearing does not constitute adequate cause. It also is possible on rare occasions that a party may be surprised by a position of the opposing party at a unit determination hearing (i.e., the union alleges that a job classification not listed in its petition is appropriate for inclusion in the proposed unit, or the employer raises a previously undisclosed objection to the proposed unit). In such a case, the hearing examiner may in his discretion continue the hearing for a short period of time so that the surprised party may prepare its evidence on the point which caused the surprise. We believe that the best way to avoid the problem of surprise is for the parties -6- ____________________________________________________________________________________ to contact each other prior to the unit determination hearing for the purpose of discussing the job classifications proposed to be included in the unit, as well as any objections to the unit as proposed. We expect parties prior to the unit determination hearing to discuss maturely and responsibly in a forthright fashion all matters which may be raised at the hearing. In the case where a party fails to contact the opposing party prior to the hearing and alleges surprise at the hearing, we believe it to be questionable whether the hearing examiner should grant a continuance of the hearing. Having found that Local No. 48 is not entitled under the Act to a de novo trial on appeal, we hereby GRANT the City's motion to exclude any evidence which was not offered at the August 30, 1978 unit determination hearing. Because Local No. 48 would not be able to introduce any new evidence at an appellate hearing, we conclude that there is no purpose to be served by scheduling such a hearing. After examining the documentary evidence submitted by the City at the unit determination hearing and the facts set forth in the September 13, 1978 Unit Determination Report, we find that the hearing examiner correctly ruled that the Division Heads are not public employees within the meaning of the Act, and that Local No. 48's Petition for Unit Determination accordingly must be dismissed. We consequently affirm the September 13, 1978 Unit Determination Report, and order that Local No. 48's notice of appeal filed September 22, 1978 is DENIED. Dated at Augusta, Maine this 20th day of February, 1979. MAINE LABOR RELATIONS BOARD /s/_________________________________ Donald W. Webber Alternate Chairman /s/_________________________________ Paul D. Emery Employer Representative /s/_________________________________ Michael Schoonjans Employee Representative -7- ____________________________________________________________________________________