City of Bath and Council 74, AFSCME, No. 81-A-01, affirming 81-UC-01. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 81-A-01 Issued: December 15, 1980 _________________________________ ) CITY OF BATH ) ) and ) REPORT OF APPELLATE REVIEW OF ) UNIT CLARIFICATION REPOPT LOCAL 1828, COUNCIL 74, AMERICAN ) FEDERATION OF STATE, COUNTY AND ) MUNICIPAL EMPLOYEES, AFL-CIO ) _________________________________) This is an appeal of a unit clarification report filed pursuant to 26 M.R.S.A. 968(4) on September 8, 1980 by the City of Bath (City). The City alleges that the hearing examiner made factual errors in the report, which denied the City's pe- tition seeking to exclude a group of dispatchers from the existing Bath Police Department bargaining unit. Hearing was held on the appeal on November 5, 1980, Chairman Edward H. Keith presiding, with Employer Representative Don R. Zieqenbein and Employee Representa- tive Wallace J. Legge. The City was represented by Roger R. Therriault, Esq., while Local 1828 of Council 74, American Federation of State, County and Municipal Employ- ees, AFL-CIO (Union) was represented by John J. Ezhaya. At the conclusion of the hearing the parties engaged in oral argument. JURISDICTION The City is a "public employer" as defined in 26 M.R.S.A. 962(7), and is an aggrieved party within the meaning of 26 M.R.S.A. 968(4). The Union is a public employee labor organization. The jurisdiction of the Maine Labor Relations Board to hear this appeal and render a decision and order lies in 26 MR.S.A. 968(4). FINDINGS OF FACT Upon review of the entire record, the Board modifies and adopts the following findings of fact made by the hearing examiner: 1. On February 9, 1970, the City and Union agreed to a bargaining unit consist- ing of the Deputy Chief, Sergeants and Patrolmen employed by the Bath Police Department. [-1-] ____________________________________________________________________________________ There is no evidence regarding the history of the description of this bargaininq unit except that the position of Dispatcher first appeared in the unit description contained in the 1976-1977 collective bargaining agreement. The bargaining unit description in the most recent contract, with a term from July, 1977 to June, 198O, states that the Union is the bargaining agent "for the members of the Bath Police Department, with the exception of the Police Chief, Deputy Chief, Matron and Special Police." 2. In February, 1979, after several years of consideration, the City passed an ordinance which created a new Communications Department. The ordinance pro- vides that the new department has charge of the communications systems involved with all police and fire department operations, and will handle such other communi- cations-related matters as deemed advisable or necessary by the City Manager. The intention behind the creation of the new department was to establish a centralized dispatching system which would in the long run be more economical and effective than previous systems. 3. Prior to the creation of the new department, the bargaininq unit contained two Sergeants, one Detective, five Senior Patrolmen, twelve Patrolmen, one Clerical, and four Dispatchers. The dispatchers and the clerical worker are not sworn police officers. The dispatchers were located in the City Hall building, right across the hallway from the patrolman squad room. They staffed the communications center at all times, working around the clock, as do the police officers, although the shift schedules for dispatchers and police officers are different. They handled all police communications, including administrative calls, and also some ministerial police functions such as parking ticket bookkeeping; sending out notices of parking fines and receiving payment of the fines; police department filing; bicycle registration; and the issuance of permits to drive within the City without a current motor vehicle inspection sticker. 4. Prior to the new department, the dispatching of fire vehicles and ambulan- ces was handled by fire fighters or CETA employees located in the fire station. The City's Public Works Department and Sewer Department, soon to be consolidated into a single Public Services Department, each need a small amount of dispatching which is currently handled by a secretary in the Public Works Department. 5. Fire and ambulance dispatching was consolidated with police dispatching duties as a result of the establishment of the Communications Department. -2- ____________________________________________________________________________________ A separate budget for the new department was created by transferring funds from the Police Department budget. New communications lines and equipment were in- stalled, costing more than $10,000. The dispatchers are still located next to the Police Department in City Hall, in a larger room than before. The City plans to add Public Services Department communications to the new department. An emergency "911" telephone system also is in the planning stages. If implemented, such a system will require additional equipment which will require more space than the communica- tions center now has available. The Communication Department might have to move to a new location at that point, although there are no specific plans for such a move at the present time. The City also hopes that its centralized dispatching system will attract surrounding towns to contract with the City for dispatching services. 6. The head of the Police Department, Police Chief Bruton, has also been named head of the Communications Department. One of the dispatchers has been pro- moted to the position of Supervisor of Communications, with a ten percent pay raise, and a fifth dispatcher has been hired. 7. The dispatchers now perform the additional duties of handling fire and ambulance communications. These additional duties constitute approximately a 14% increase in message traffic, based on a breakdown of 2,879 police-related calls versus 389 fire and ambulance-related calls over the six months prior to the unit clarification hearing. The dispatchers continue to perform all other duties and functions performed before the creation of the new department, except that they no longer are required to accept payment for parking ticket fines. 8. As before, patrolmen fill in for the dispatchers for a few minutes while the dispatchers take breaks. The patrolmen also have continued to transport the dispatchers to and from home due to a problem with vandalism and a shortage of parking around City Hall. Dispatcher uniforms, with "Bath Police Department" patches on the sleeves, are still ordered through the Police Department supply house. 9. The City notified the Union of all key events involved in the creation of the Communications Department. In a July 25, 1979 letter to the Union, the City stated that it no longer considered the dispatchers to be part of the police bar- gaining unit. The City indicated its intention to continue the dispatchers' -3- ____________________________________________________________________________________ benefits, which were the same as those of other police department employees, until the contract expired on June 30, 1980. The City also stated that it was willing to bargain with the dispatchers for a separate contract if the dispatchers so wished. There is no evidence that the Union ever agreed to a separate unit of dispatchers or acquiesced to the City's assertion that the dispatchers were no longer part of the old unit. When bargaining commenced for a successor contract to commence July 1, 1980, the Union maintained that the dispatchers were still in the unit. Although the City had hoped for a voluntary agreement on separate units, it filed its peti- tion for unit clarification when it became clear the Union would not agree to a separate unit of dispatchers. 10. A dispatcher was secretary/treasurer of the Union's Local 1828 for a four-year period ending in June, 1980. The Supervisor of Communications currently is a member of the Union's negotiating team. The dispatchers wish to remain in the existing bargaining unit. DECISION The hearing examiner concluded that the City's petition should be dismissed because there has been little change in the clear and identifiable community of interest shared by the job classifications included in the unit. The City urges that the hearing examiner erred because he focused on the dispatchers' ancillary functions rather than their primary functions. These ancillary functions cannot serve, the City argues, as the basis for a community of interest finding. In addition, the City argues that the Union is estopped from asserting that the dis- patchers continue to share a community of interest with the other members of the unit. Having carefully considered the facts of this case, we conclude that the hearing examiner correctly found that the dispatchers share a clear and identifi- able community of interest with the other members of the unit. We do not agree with the City's contention that the hearing examiner improp- erly emphasized the dispatchers' ancillary functions of handling Police Department paperwork, issuing permits, and performing other ministerial duties. The hearing examiner found a community of interest exists because the members of the unit share a similarity in work performed in that all deal with the world of emergencies and -4- ____________________________________________________________________________________ public protection; the dispatchers' job is integrated with the jobs of the police officers in that they communicate with each other constantly during the working day and frequently have other interchanges; all the employees are subject to the common supervision of the Police Chief; the employees work at the same location; the dispatchers desire to remain in the bargaining unit, and the unit has a history of successful collective bargaining since at least 1976. All of these factors relied upon by the hearing examiner involve the dispat- chers' primary function - dispatching - and all are among the traditional indicia upon which community of interest determinations are made. See, e.g., AFSCME, Pine Tree Council No. 74 and City of Brewer, Case No. 79-A-01 at 3-4 (Oct. 13, 1979). All these factors are supported by the evidence, and all of the factors taken to- gether show very plainly that the dispatchers continue to share a clear and identi- fiable community of interest with the other members of the unit. As the hearing examiner found, the creation of the new Communications Depart- ment meant little substantive change in the dispatchers' job. The dispatchers continued to perform the primary function of dispatching calls, the same function they were performing in 1976 when the City agreed that they should be included in the bargaining unit. The only changes were that the dispatchers took on additional dispatching duties (for the Fire Department and ambulance service), constituting approximately a 14% increase in message traffic, while dropping the duty of accept- ing payment for traffic tickets. Such changes hardly amount to the sufficient change in circumstances required by 26 M.R.S.A. 966(3) before an existing unit properly can be modified. Modification of the bargaining unit on the basis of such minor changes, particularly when the employees desire to remain in the unit, would interfere with the free exercise of the employees' Section 963 rights, and would also be contrary to our policy of discouraging the proliferation of small municipal bargaining units. See, e.g., Town of Yarmouth and Teamsters Local 48, MLRB No. 80-A-04 at 4 (June 16, 1980). The fact that a new department was created does not by itself mean that the dispatchers are "automatically" excluded from the existing unit. Each unit clari- fication petition must be judged on its own facts, and the proper analysis, as the hearing examiner recognized, is to ascertain exactly what changes have occurred and to weigh whether these changes are sufficient to meet the requirements of Section 966(3). Because the slight changes in duties involved in this case fall -5- ____________________________________________________________________________________ far short of the Section 966(3) requirements, the hearing examiner correctly denied the City's petition. The City's argument that it will have difficulty negotiating a contract if the dispatchers remain in the unit is unpersuasive. The City has already nego- tiated two agreements for the unit as it presently exists, and there is no evi- dence that any difficulty was encountered in these negotiations. Dispatchers are commonly included in police bargaining units, see, e.g., Teamsters Local 48 and City of Biddeford, MLRB Unit Determination Report (Aug. 4, 1978) [78-UD-34]; Brunswick Police Communications Operations Association and Town of Brunswick, MLRB Report of Appellate Review (Jan. 17, 1977) [77-A-03], and we are not aware that bargaining for these units has been unduly difficult. Good faith and common sense will mean that a successor contract for the bar- gaining unit can be negotiated without excessive difficulty; clauses applicable only to the dispatchers can easily be included in the contract, and we anticipate that the parties will experience difficulties only if they wish to create them. In any event, we cannot understand why negotiating one contract for the unit would be any more difficult than negotiating two separate agreements, which likely would be required if the dispatchers were removed from the unit. Finally, we do not agree with the City's argument that the Union is estopped from urging that a community of interest continues to exist between the dispat- chers and other members of the unit. The issue of estoppel seemingly was not raised before the hearing examiner and the City is precluded from raising a new issue for the first time on appeal. Teamsters Local 48 and City of Portland, MLRB Report of Appellate Review at 4-5 (Feb. 20, 1979) [78-A-10]. Assuming that the issue was raised, however, we do not see that the Union's failure to respond to the City Manager's July 25, 1979 letter can be held to estop the Union from asserting a position in this proceeding. That letter states that the City no longer consi- dered the dispatchers to be part of the bargaining unit, and did not, in our opinion, impose on the Union a "duty to speak" prior to the commencement of nego- tiations. See, e.g., Milliken v. Buswell, 313 A.2d 111, 119 (Me. 1973). In any event, nothing estopped the hearing examiner from ruling on the merits of the petition, which was filed by the City, not the Union. We will overturn a hearing examiner's rulinqs and determinations if they are "unlawful, unreasonable, or lacking in any rational factual basis." Team- sters Local 48 and City of Portland, supra at 6. Nothing presented by the City -6- ____________________________________________________________________________________ shows that the hearing examiner committed any of these errors. We accordingly will affirm the hearing examiner's report and deny the city's appeal. Nothing stated in this Report should be understood to imply that the present community of interest necessarily will continue to exist if the City implements some or all of its current plans and ideas. If the "911" system is implemented, if the dispatchers begin to handle communications for all City departments, if other towns contract to use the City's communications system, or if the communications operation is moved to a different facility, reducing the amount of time the dis- patchers spend on Police Department matters and removing the dispatchers' inteqral relationship with the Police Department, then another petition for unit clarifica- tion will be appropriate. We hold here only that since there has been insufficient changes in circumstances surrounding formation of the existing unit, the hearing examiner correctly held that removal of the dispatchers would be premature and improper. ORDER On the basis of the foregoing findings of fact and decision and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4), it is ORDERED: 1. The August 21, 1980 Unit Clarification Report in this matter is affirmed. As ordered by the hearing examiner, the bargaining unit includes all members of the Bath Police and Communications Departments, with the exception of the Police Chief, Deputy Chief, Matron and Special Police. 2. The City's September 8, 1980 appeal is denied. Dated at Augusta, Maine this 15th day of December, 1980. MAINE LABOR RELATIONS BOARD /s/_______________________________ The parties are advised of Edward H. Keith their right pursuant to 26 M.R.S.A. Chairman 968(4) and 972 to seek review of this Report by filing a com- plaint in Superior Court in /s/_______________________________ accordance with Rule 80B of Don R. Ziegenbein the Rules of Civil Procedure Employer Representative within 30 days of receipt of this Report. /s/_______________________________ Wallace J. Legge Employee Representative -7- ____________________________________________________________________________________