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APPEARANCES
Representing: AFSCME Council 93, Local 863, Rochester
Public Works
Michael Maccaro, Esq., AFSCME Council 93, Boston, Massachusetts
Representing: City of Rochester
Warren D. Atlas, Esq., Bedford, Massachusetts
BACKGROUND
On June 12, 2007 AFSCME Council 93, Local 863, Rochester
Public Works (“AFSCME”) filed a modification petition to include buildings
and grounds employees in an existing bargaining unit consisting of all
permanent, full-time employees of the Public Works Department, excluding
department heads, foremen, assistant department heads, clerical, staff,
seasonal and probationary employees.
The City of Rochester filed its answer on June 27, 2007. The City contends
that AFSCME’s proposed modification is materially different from the
bargaining unit description contained in the recognition clause and that
there is no community of interest between the buildings and grounds division
employees and employees covered by the certification and/or recognition
clause. The City also claims that the modification petition is barred by Pub
302.05 (b)(1) and (b)(2), that AFSCME is required to meet the 30% interest
requirement per Pub 301.01 (i), and that election procedures associated with
the formation of a new bargaining unit must be followed.
On July 3, 2007 the PELRB issued a Notice of Hearing scheduling this matter
for hearing on July 24, 2007. Subsequently, AFSCME requested and obtained a
continuance of the July 24, 2007 hearing date and the PELRB then scheduled
this matter for hearing on September 28, 2007.
The undersigned hearing officer conducted a hearing on the modification
petition on September 28, 2007 at the PELRB offices in Concord. The parties
had a full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence. At the parties’ request, the record was held open
until 30 days after the parties obtained tapes of the hearing in order to
allow the parties to file briefs. Thereafter, the PELRB granted the parties’
joint request to extend the deadline to file briefs to November 19, 2007.
Both parties have filed briefs, and the record is now closed.
FINDINGS OF FACT
1. The City of Rochester is a public employer subject to
the provisions of RSA 273-A.
2. On November 28, 1983, the PELRB certified AFSCME as the exclusive
representative of all permanent, full-time employees of the Public Works
Department, excluding department heads, foremen, assistant department heads,
clerical, staff, seasonal and probationary employees.
3. The recognition clause in the July 1, 2003 to June 30, 2007 Collective
Bargaining Agreement (“2003-2007 CBA”) describes the bargaining unit as “all
permanent, full-time employees of the Public Works Department inclusive of
the Water and Sewer Divisions excluding the Director, foremen, assistant
Directors, clerical staff, seasonal and probationary employees.”
4. The City does not dispute that the certification covering all permanent,
full-time employees of the Public Works Department which AFSCME seeks to
modify includes highway department employees, water and sewer construction
crews, water plant employees, and sewer plant employees.
5. The buildings and grounds division has 14 employees, 10 of which are full
time positions.
6. Historically, it appears that buildings and grounds was originally part
of Code Enforcement under the direction of John Stowell, who retired in the
1998-99 time period. Thereafter, under Dick White, buildings and grounds
became its own department, and when Mr. White resigned, buildings and
grounds was moved into the DPW, and by 2003, if not earlier, buildings and
grounds was under the overall direction of Melodie Esterberg, the DPW
Commissioner.
7. Employees in the buildings and grounds division report to Bruce Young,
who in turn reports to Melodie Esterberg, the DPW commissioner. Both Ms.
Esterberg’s and Mr. Young’s city telephone numbers appear in the DPW section
of the city’s telephone list. Union Exhibit 11.
8. Highway department employees, water and sewer construction crews, water
plant employees, and the sewer plant have their own supervisors, but these
supervisors, like Bruce Young, report to and work under the direction of Ms.
Esterberg. As evidenced by the job descriptions submitted into evidence, the
employees of the highway department, water and sewer, water plant, and sewer
have different job duties and responsibilities and work in different
locations. Joint Exhibits 3-20.
9. A buildings and grounds employee who wishes to take time off completes a
form titled “Rochester DPW Time Off Request Form.” Below this header the
states “Water-Highway-Buildings and Grounds-Sewer.” Union Exhibit 1.
10. A City notice relating to the summer of 2007 time period expressly
provides that the DPW is accepting applications for Maintenance Technicians
to “perform responsible, skilled buildings and grounds maintenance duties.”
Union Exhibit 5.
11. A June 2007 City payroll status change form authorized by DPW
Commissioner Melodie Esterberg, verified by the City Human Resource
Coordinator, and approved by the City Manager references the DPW as the
department for Larry Downes, the involved buildings and grounds employee.
Union Exhibit 6.
12. City purchase orders relating to material ordered by buildings and
grounds employees are placed under the department of the DPW and are shipped
to the DPW at 45 Old Dover Road. Union Exhibit 7.
13. DPW workplace rules, Union Exhibit 14, are posted in the buildings and
grounds office located at the community center on Wakefield street.
14. The City has provided shirts to employees of the building and grounds
division which reflect that buildings and grounds is considered part of the
DPW. Union Exhibits 2 and 4.
15. Union Exhibit 2 was distributed at an annual spring party attended by
public works employees and held at the highway garage. The back of the shirt
contains a DPW logo, which includes images representing the different
divisions, including buildings and grounds.
16. Union Exhibit 4 is one of the uniform shirts worn by employees of the
different divisions in the DPW, and it is a shirt worn by employees of the
buildings and grounds division.
17. The City also distributes to buildings and grounds employee and DPW
employees a pin as a form of commendation for the quality of work performed.
Union Exhibit 3. The pin features the same DPW logo that appears on Union
Exhibit 2 (t-shirt).
DECISION AND ORDER
JURISDICTION
The PELRB has jurisdiction over the determination of
bargaining units, including modifications of existing bargaining units,
pursuant to the provisions of RSA 273-A:8.
DISCUSSION
The City argues that under Pub 302.05 (b) dismissal is
required as this matter should be settled through the election process and
because AFSCME has failed to show a sufficient change in circumstances. Pub
302.05 (b) provides that:
A petition shall be denied if:
(1) The question is a matter amenable to settlement
through the election process; or
(2) The petition attempts to modify the composition of a bargaining unit
negotiated by the parties and the circumstances alleged to have changed,
actually changed prior to negotiations on the collective bargaining
agreement presently in force.
The crux of the City’s argument is that because there are
a sufficient number of buildings and grounds employees to form an
independent bargaining unit, they should be required to proceed to form an
independent bargaining unit under the procedures set forth in Pub 301.01.
However, the City overlooks the fact that there may be advantages to
buildings and grounds employees in collective bargaining if they join with a
larger existing bargaining unit with nearly 25 years experience of
collective bargaining with the city. Also, Pub 302.05 (b)(1) does not
require the denial of AFSCME’s petition just because buildings and grounds
employees meet the criteria necessary to establish an independent bargaining
unit. The City complains that the buildings and grounds employees are not
being given the opportunity to express their preference, either at the
ballot box or through the submission of showing of interest (signature)
cards. This argument might carry more weight had there been evidence that a
meaningful number of buildings and grounds employees oppose the modification
request, but there is insufficient, if any, evidence to this effect.
Further, the rules do not require a showing of interest through signature
cards or at the ballot box in order to modify an existing bargaining unit.
The City has not cited any authority for its argument that
an election is required given the facts of this case beyond the language of
Pub 302.05 (b)(1). While such authority is not required, it would lend
support to the City’s position since in general elections are not conducted
in modification proceedings. The City has not identified any circumstances
or facts unique to this case which, to use the language of the rule,
demonstrate that “the question is a matter amendable to settlement through
the election process.”
The City’s remaining argument for dismissal under Pub
302.05 (b)(2) concerns the change in circumstances requirement. This
argument fails because the City has not introduced sufficient evidence to
satisfy all the requirements of Pub 302.05 (b)(2). There was no evidence at
hearing that the composition of the existing bargaining unit was ever
negotiated by the parties and likewise insufficient or no evidence as to
when negotiations on the July 1, 2003 to June 30, 2007 Collective Bargaining
Agreement (“2003-2007 CBA”) took place. See NEPBA Inc. Local 40 and 45
and SEA/SEIU Local 1984, PELRB Decision No. 2006-174 and State
Employees Association of New Hampshire Local 1984 SEIU v. State of New
Hampshire, PELRB Decision No. 2002-045. Evidence on these points, as
well as on adequacy of the claimed change in circumstances, are requirements
for dismissal under Pub 302.05 (b)(2). Further, there has been a change in
circumstances, consisting of a number of organizational changes referenced
in the Findings of Fact that have occurred with respect to the relationship
of buildings and grounds employees to the DPW and DPW employees since 1999.
The City also contends that AFSCME has not satisfied the
community of interest requirement, mainly because buildings and grounds
employees have different job responsibilities and work in different
locations as compared to the DPW employees currently covered by the existing
bargaining unit. However, the City overlooks the fact that there is already
a noticeable diversity in terms of job responsibilities and work locations
among existing bargaining unit employees. This existing diversity undermines
the City’s argument that buildings and grounds employees cannot have a
community of interest with other bargaining unit members on account of their
specific job responsibilities and work locations. The distinctions and
differences between buildings and grounds employees and existing bargaining
unit employees are no more significant than the distinctions and differences
that exist as between the current bargaining unit members.
The current bargaining unit is populated by employees who work for the
highway department, the sewer plant, the water plant, and or are on the
water and sewer construction crews. Their relatively diverse job
responsibilities and places of work are illustrated by the job descriptions
submitted into evidence. Despite these differences, this group of employees
has functioned as a bargaining unit under RSA 273-A since 1983, and the City
does not contend today that it is an inappropriate unit. With regard to the
employees at issue in this case, a community of interest showing does not
require the level of uniformity in job duties, places of work and other
areas urged by the City. Additionally, there are a number of documents which
either on their own or in conjunction with witness testimony show that that
as of 2007, at least on an operational basis, the City considers the
buildings and grounds division to be a division of the DPW, and they are
subject to common rules and procedures. For example, see Union Exhibits 1,
2, 3, 4, 5, 6,7, 11, and 14.
The involved employees all work under the overall
direction of the DPW commissioner and are all considered to be DPW
employees. They also have common uniforms and are subject to similar
workplace rules. A common theme among existing bargaining unit members is
their status as DPW employees. It is evident that buildings and grounds
employees are also in fact considered and treated as DPW employees, an
arrangement that has developed since 1999. The City has also taken steps to
promote the common purpose and unity of existing bargaining unit employees
and buildings and grounds employees, as evidenced by the various logos, the
“moral” buttons, and group gatherings.
The various DPW logos submitted into evidence reflect the
understanding that buildings and grounds is considered to be part of the DPW,
and certainly suggests that this must be the prevalent belief and
understanding among employees. The evidence indicates that the buildings and
grounds employees are treated as part of this larger group, and are involved
in some common activities which reflect a self-felt community of interest.
AFSCME has introduced evidence to satisfy the community of interest
requirement in accordance with the applicable criteria set forth in RSA
273-A:8, I and Pub 302.02.
Accordingly, the modification petition is granted. The
existing bargaining unit is amended as follows:
UNIT: All permanent, full-time employees of the Public
Works Department and buildings and grounds. Excluding: department heads,
foremen, assistant department heads, clerical, staff, seasonal and
probationary employees.
So ordered.
February 26, 2008
/s/ Douglas L. Ingersoll
Douglas L. Ingersoll, Esq.
Hearing Officer
Distribution:
Michael Maccaro, Esq.
Warren D. Atlas, Esq.
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