CITY OF MALDEN --

CITY OF MALDEN and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, Case No. MCR-4853, October 10, 2001, 28 MLC 130.

Moreschi, Chairwoman, and Preble Commissioner

The National Association of Government Employees (the Union) filed a petition with the Labor Relations Commission (the Commission) on November 21, 2000 seeking to represent certain clerical and administrative employees of the City of Malden (the City), its parking enforcement officers and cadets. On January 23, 2001, in response to a request from the Commission, the Union clarified its petition to state that it was seeking to represent the administrative assistants and clerks in various municipal departments, the parking enforcement officers, the cadets, the matron, and the domestic violence advocate. The Union amended its petition on February 16, 2001 to seek the administrative assistants and clerks in the mayor's office, the human resources office, the city solicitor's office and the office of the city council.

The Union asserts that the petitioned-for bargaining unit, a single bargaining unit, is appropriate. Further, the Union seeks to include the Malden Retirement Board clerks in the unit. However, if the Commission determines that the petitioned-for unit is inappropriate, the Union requests that the Commission define the appropriate unit.

The City maintains that the petitioned-for unit is inappropriate and that the petition should be dismissed. However, the City argues in the alternative that if the petition is not dismissed, the Commission should create two bargaining units. The City contends that the following bargaining units are appropriate: 1) a unit of clerks and administrative assistants and 2) a unit of cadets, parking enforcement officers, the domestic violence advocate and the matron. Further, the City argues that the clerk to the Board of Appeals and the clerk to the Licensing Board are casual employees under Section 1 of Chapter 150E (the Law) and are not entitled to bargaining rights under the Law. Finally, the City asserts that the Malden Retirement Board clerks are not municipal employees and that it is inappropriate to include them in a bargaining unit with City employees.

On April 4, 2001, Margaret Sullivan, a duly-designated Commission hearing officer, conducted a hearing pursuant to Section 4 of the Law at which both parties had the opportunity to be heard, to examine witnesses, and to introduce evidence. The Union and the City filed post-hearing briefs on May 17, 2001 and May 14, 2001 respectively.

1. The City of Malden is a public employer within the meaning of Section 1 of the Law.

2. The National Association of Government Employees is an employee organization within the meaning of Section 1 of the Law.

3. The positions of administrative assistant and clerk in the mayor's office, administrative assistant in the solicitor's office, administrative assistant to the city council, and the clerk in the human resources department perform confidential duties pursuant to Section 1 of the Law.

4. The sole issue to be presented to the Commission is whether the petitioned for unit is appropriate within the meaning of Section 3 of the Law.

5. The following positions do not perform managerial or confidential duties as defined in Section 1 of the Law: assessor's department clerk, assessor's department administrative assistant, board of health administrative assistant, building department clerk, cemetery department clerk, city clerk's office clerk, code enforcement clerk, controller's office clerk, controller's office administrative assistant, council on aging clerk, department of public works clerk, department of public works administrative assistant, emergency management clerk, engineering department clerk, fire department clerk, fire department administrative assistant, government center commission clerk, library clerk, McFadden Manor clerk, McFadden Manor administrative assistant, MIS clerk, police department clerk, police department administrative assistant, traffic department clerk, treasurer's office clerk, treasurer's office parking clerk, treasurer's office administrative assistant, veteran's office clerk, water department clerk, wire inspector clerk, parking enforcement officer, domestic violence advocate, matron and cadet.

Clerks and Administrative Assistants

The City employs clerical staff in various municipal departments including the assessor's department, the board of health, the building department, the cemetery department, the city clerk's office, code enforcement, the controller's office, the council on aging, the department of public works, the office of emergency management, the engineering department, the fire department, the government center commission, the library, McFadden Manor, the office of management information systems, the police department, the traffic department, the treasurer's office, the office of veterans affairs, the water department, and the wire inspector's office. These clerical employees hold the titles of clerk and administrative assistant[3]. A clerk performs the following job duties: typing documents; participating in the preparation and processing of forms, records, applications and special reports; sending out notices and forms; verifying the accuracy of records and computations; preparing materials for the department head's signature; assisting the public, other City departments and vendors by furnishing routine information regarding departmental operations; helping members of the public complete various forms and applications; providing informational and referral services to the general public; answering the telephone and taking messages; assisting to create and maintain all department files; and distributing reports, memoranda and necessary information to the appropriate individuals. An administrative assistant performs the following job duties: supervising, directing and coordinating the activities of subordinates, including training subordinates; maintaining discipline and making recommendations on employee performance, selection and discipline; exercising responsibility for the maintenance of departmental records, including personnel files and records; collecting money for the department; overseeing and participating in the calculation and preparation of the weekly payroll for the department; keeping budgetary records, monitoring expenditures and balances within accounts; assisting the department head in the preparation of the annual budget; preparing monthly, annual and quarterly reports; completing purchase orders; paying bills and processing invoices, communicating official plans, policies and procedures to staff and the general public; assisting the public, other City departments and vendors by furnishing routine information; providing informational and referral services to the general public, answering the telephone and taking messages; and typing different types of documents. Most of the City's clerical employees[4] work Monday, Wednesday and Thursday from 8:00 AM to 4:00 PM, Tuesday from 8:00 AM to 7:00 PM and Friday from 8:00 AM to 3:00 PM[5]. At times, the clerk to the police prosecutor may come in one hour early to prepare a case for court[6].

Two municipal boards, the Board of Appeals and the Licensing Board, meet approximately one evening per month. Both the Board of Appeals and the Licensing Board each have a clerk who attends the monthly meetings and compiles the official record of these meetings. The clerks in these positions earn stipends of $3600 per year and do not receive any employee benefits from the City[7]. At times, the clerk to the Board of Appeals and the clerk to the Licensing Board have simultaneously held other clerical positions in the City.

Two clerks also work at the Malden Retirement Board. The Malden Retirement Board shares a room at City Hall with the City's Human Resources Department. However, the two Malden Retirement Board clerks are not on the City payroll, and the Malden Retirement Board determines their compensation levels. Furthermore, although these two clerks receive the same employee benefits as the municipal clerks and administrative assistants and participate in the City's health insurance plan, they receive these benefits at the discretion of the Malden Retirement Board.

Cadets

The City's Police Department consists of two divisions, a police division and a traffic division. Both of these divisions have separate budgets, but sworn police officers work in both divisions[8]. The City employs five cadets to work in the police division. A cadet performs the following job duties: assisting the police officer on duty in the police station's dispatch room with all of the dispatching functions[9]; including accessing databases for the state Registry of Motor Vehicles (the RMV), the Criminal History Systems Board (the CHSB) and the National Crime Information Center (the NCIC); answering emergency telephone calls from residents including E-911 calls; monitoring the safety of male prisoners using a closed circuit camera; greeting and helping members of the public, including responding to requests for photocopies, taking reports from citizens; answering all business telephone lines; filing documents with the state bureau of records, typing and preparing arrest complaints for court; and giving tours to citizen groups[10]. The cadet on duty reports to the officer-in-charge[11]. A new cadet undergoes approximately forty hours of on the job training, including how to use the RMV, the CHSB and the NCIC, and must become qualified to operate the E-911 system[12].

Each cadet works thirty-five hours per week and is eligible to receive the same employee benefits as the City's clerical employees[13]. Most cadets are college students who are interested in pursuing a career in law enforcement[14]. Cadets are not sworn police officers. There is a cadet on duty at all times, including nights and weekends[15]. However, the City assigns two cadets to the day shift four days per week. The City assigns one of the cadets to the dispatch room, while the other cadet covers the front desk[16]. Cadets wear a uniform consisting of dark blue pants, a light blue shirt bearing an insignia and a sweater.

Matron

The police division has a matron on call from 7:00 AM to 7:00 PM[17], seven days per week to monitor female prisoners ensuring their safety and privacy[18]. Whenever the police department takes a female prisoner into custody, the officer in charge will page the matron who then reports to the police station. If necessary, the matron will perform a pat frisk of a female prisoner as well. The police department does not request that the matron perform any other duties. When Chief Aucoin hired the current matron, Ms. Deats (Deats), he looked for a candidate who seemed mature and capable and who could successfully pass a background check. Although Deats received some initial training, the Police Department has not provided her with any additional training since that time. The matron earns a fixed salary of $9,289 that is not contingent upon the number of times that she actually monitors a female prisoner, but she is not eligible to receive employee benefits from the City. The matron is not a sworn police officer and does not wear a uniform.

Domestic Violence Advocate

The domestic violence advocate offers direct service and support to victims of domestic violence and their families and participates in community outreach programs. The domestic violence advocate works in the police division in conjunction with two police officers from the detective bureau who deal with domestic violence issues and reports to the second in command of the detective bureau, Lieutenant Swanson. However, the domestic violence advocate is not a sworn police officer and does not wear a uniform. The current domestic violence advocate Lisa Armstrong (Armstrong) has an office in the detective bureau, but occasionally travels to meetings, workshops or other agencies[19]. When the police department hired Armstrong a few months ago[20], the police department looked for a candidate who held a bachelor's degree in criminal justice, criminology, psychology or counseling and had prior experience in a related field. Armstrong held a bachelor's degree in sociology and had previously worked for the state parole board. The domestic violence advocate has the same hours of work as the City's clerical employees and earns a salary of between $28,000 and $32,000.

Parking Enforcement Officers

The other division in the police department is the traffic division, which is overseen by the Traffic Commission. Chief Aucoin is chairperson of the Traffic Commission. The traffic division consists of parking enforcement officers and traffic clerks[21]. The parking enforcement officers administer parking regulations throughout the City; issue parking tickets[22] to motorists who violate these regulations; and report any problems with motorists to the police lieutenant who oversees the traffic division. The parking enforcement officers are not sworn police officers, have no arrest powers and cannot order a motor vehicle to be towed. The parking enforcement officers wear a uniform consisting of dark blue pants and a light blue shirt with an insignia[23] and carry a radio that connects them to the central police dispatch.

When arriving for duty, the parking enforcement officers first report to police headquarters where they pick up their ticket books. The City assigns the parking enforcement officers to routes that they complete either on foot or in a City vehicle. The City requires the parking enforcement officers to have a valid Massachusetts driver's license. The parking enforcement officers return back to the police station at the end of their shifts[24], and turn over copies of the parking tickets that they issued that day to a clerk in the traffic division[25].

There are three parking enforcement officers who work full-time[26] and there are three part-time parking enforcement officers who work fifteen (15) hours per week. The full-time parking enforcement officers are eligible to receive the same benefits as the City's clerical employees. Most of the parking enforcement officers work overlapping schedules that cover the period from 9:00 AM to 7:00 PM Monday through Friday; however, one of the parking enforcement officers works on Saturday. For the five-month period from November 1st until April 1st, the City hires five additional parking enforcement officers who work from 11:00 PM to 3:00 AM enforcing the City's winter parking regulations. For these last few years, most of the same people have returned year after year to fill these five-month positions.

The parties stipulated that the administrative assistant and clerk to the mayor, the administrative assistant to the city solicitor, the administrative assistant to the city council and the clerk in the human resources department perform confidential duties pursuant to Section 1 of the Law. If issues raised by a representation petition are resolved by agreement of the parties, the Commission will adopt the parties' agreement, provided it does not conflict with the Law, or with established Commission policy or precedent. See City of Woburn, 22 MLC 1073, 1076 (1995); Board of Trustees of the State Colleges, 4 MLC 1428 (1977). The parties' agreement on these issues does not appear to be in conflict with the Law or Commission policy, and, therefore it is adopted.

Section 3 of the Law requires the Commission to determine appropriate bargaining units that are consistent with the purpose of providing for stable and continuing labor relations while giving due regard to the following statutory considerations: 1) community of interest; 2) efficiency of operations and effective dealings; and 3) safeguarding the rights of employees to effective representation. See City of Everett, 27 MLC 147, 150-151 (2001); Town of Bolton, 25 MLC 62 (1998). The proposed unit must only be an appropriate unit, not the most appropriate unit. See City of Boston, 18 MLC 1036, 1043 (1991). In considering efficiency of operations and effective dealing, the Commission has created a policy of historically favoring broad, comprehensive units over small, fragmented units. See Higher Education Coordinating Council, 23 MLC 194, 199 (1997); City of Boston, 18 MLC at 1043.

To determine whether employees share a community of interest, the Commission considers factors like similarity of skills and functions, similarity of pay and working conditions, common supervision, work contact and similarity of training and experience. See Princeton Light Department, MCR-4803, slip op., p. 10 (June 29, 2001); Town of Bolton, 25 MLC at 65; Boston School Committee, 12 MLC 1175, 1196 (1985). No single factor is outcome determinative. See City of Springfield, 24 MLC 50, 54 (1998); City of Worcester, 5 MLC 1108, 1111 (1978). The Law requires that employees share only a community of interest rather than an identity of interest. County of Dukes County/Martha's Vineyard Airport Commission, 25 MLC 153, 155 (1999); Springfield Water and Sewer Commission, 24 MLC 55, 59 (1998). The Commission has consistently found a community of interest among employees who share similar interests and working conditions based upon common supervision and work environment. County of Dukes/Martha's Vineyard Airport Commission, 25 MLC at 155.

To satisfy the second and third criteria, the Commission considers the impact of the proposed bargaining unit structure upon a public employer's ability to effectively and efficiently deliver public services, while safeguarding the rights of employees to effective representation. See Peabody School Committee, 27 MLC 7, 8 (2000), Town of Bolton, 25 MLC at 66. The Commission satisfies these obligations by placing employees with common interests in the same bargaining unit. Id. This avoids the proliferation of units that place an unnecessary burden on an employer, while maximizing the collective strength of employees in the bargaining relationship. See City of Springfield, 24 MLC 50, 54 (1998); Mass. Board of Regional Community Colleges, 1 MLC 1426, 1440 (1975).

Here, the Union seeks a single bargaining unit consisting of: clerks and administrative assistants in various municipal departments, the cadets, the domestic violence advocate, the matron and the parking enforcement officers. Conversely, the City argues that the clerks and the administrative assistants do not share a community of interest with the other petitioned-for positions and that the Commission should either dismiss the Union's petition as inappropriate or create two separate bargaining units. Applying the statutory criteria here, we find that a single bargaining unit is an appropriate unit within the meaning of the Law. The clerical employees, the cadets, the domestic violence advocate, the matron and the parking enforcement officers all share a community of interest, although not an identity of interest. See Franklin Institute of Boston, 12 MLC 1091, 1093 (1985). The Commission's preference for broad comprehensive units is balanced by the Commission's concern that a unit should not include employees so diverse as to produce inevitable conflicts in the collective bargaining process. See University of Massachusetts, 4 MLC 1384, 1392 (1977). Only significant differences that would result in inevitable conflicts constitute a basis for excluding employees from a bargaining unit on the grounds that the employees lack a community of interest with other bargaining unit members. See West Boylston Water District, 25 MLC 150, 151 (1999); Franklin Institute of Boston, 12 MLC at 1093. In the present case, we do not find any evidence that the interests of the clerical employees, the cadets, the domestic violence advocate, the matron and the parking enforcement officers are so diverse that to include them in the bargaining unit would produce an inevitable conflict and disrupt the collective bargaining process.

The clerks and administrative assistants, the cadets, the domestic violence advocate and the full-time parking enforcement officers are all eligible to receive employee benefits from the City. Further, the clerical employees, the domestic violence advocate and the parking enforcement officers, with one exception, all work a Monday through Friday schedule. Although there is a cadet on duty twenty-four hours per day, seven days per week, the regular workweek of each cadet is only thirty-five hours per week, which is the same number of hours that the clerical employees and the domestic violence advocate work. The cadets also perform certain clerical functions including typing reports, processing paperwork, photocopying documents and handling routine telephone inquiries from members of the public. The cadets and the domestic violence advocate work in close proximity to the five clerical employees in the police department. The parking enforcement officers have daily contact with a clerk in the traffic division of the police department because the parking enforcement officers turn in copies of their completed tickets to her. Moreover, although the parking enforcement officers are out in the field for most of their working hours, they report to the police department at the beginning and end of their shifts. See Princeton Municipal Light Department, MCR-4803 at p.10-11.

Because the matron is an on-call employee whose primary job function is to monitor female inmates, differences exist between the matron's position and other positions in the proposed bargaining unit. However, the matron and the other civilian employees in the police department, the clerks, the administrative assistant, the cadets the domestic violence advocate and the parking enforcement officers, all ultimately report to the police chief. The Commission has traditionally declined to create a one-person bargaining unit because it is contrary to the Commission's policy favoring broad comprehensive units if another unit is available in which that employee can be placed. See West Boylston Water District, 25 MLC at 152; Town of Dracut, 6 MLC 1057 (1979); Chatham School Committee, 6 MLC 1042, 1043 (1975); but see, West Barnstable Fire District, 17 MLC 1076 (1990). Here, the interests of the matron are not so distinct as to preclude placing the position in the bargaining unit.

Clerk to the Board of Appeals and Clerk to the Licensing Board

The City argues that, because the clerk to the Board of Appeals and the clerk to the Licensing Board earn a stipend and receive no benefits, they are casual employees under Section 1 of the Law and are not entitled to bargaining rights under the Law. The Commission has repeatedly held that employees other than regular full-time employees are entitled to coverage under the Law. See Boston School Committee, 7 MLC 1947, 1949 (1981). The existence of rights under the Law is not conditioned upon an arbitrary number of hours worked per year or a full-time employment standard. See Town of Leicester, 9 MLC 1014, 1018 (1987). The Commission determines whether employees are casual by considering factors like continuity of employment, regularity of work, the voluntary nature of the employment and the amount of work performed by employees. Board of Regents of Higher Education, 12 MLC 1643, 1653 (1986). Here, the Board of Appeals and the Licensing Board hold monthly meetings, and their clerks are present for these meetings. There are no facts before us to indicate that the clerks could choose not to attend a meeting. See Town of Leicester, 9 MLC at 1017-1018. Because the clerk to the Board of Appeals and the clerk to the Licensing Board have both continuity of employment and regularity of employment, we conclude that these clerks are regular part-time employees.

Further, we must also determine whether these two clerks share a community of interest with other positions in the bargaining unit. See Worcester County, 17 MLC 1358, 1360 (1990). Although the clerk to the Board of Appeals and the clerk to the Licensing Board earn a stipend and are not eligible to receive employee benefits, that fact alone does not lead us to conclude that they do not share a community of interest with other unit members. Instead, we must consider the traditional community of interest factors, like whether the two clerks share a similarity of skills and functions, a similarity of training and experience and work contact with other members of the bargaining unit. Here, the clerk to the Board of Appeals and the clerk to the Licensing Board perform the same kinds of job duties as other clerical employees and work at City Hall, where many of the clerical employees also work. Therefore, we conclude that these two clerks share a community of interest with other members of the bargaining unit.

The Malden Retirement Board Clerical Employees

Relying upon the Commission's decision in City of Malden, 9 MLC 1073 (1982), the Union contends that the two clerical employees at the Malden Retirement Board are employees of the City and should be included in the proposed bargaining unit. The Union argues that the Malden Retirement Board clerks share a community of interest with the other employees in the proposed bargaining unit because the Malden Retirement Board clerical employees work in an office located within City Hall and receive the same employee benefits as the municipal employees receive. However, we have previously concluded in City of Malden, 20 MLC 1400 (1994) that the Malden Retirement Board is an independent entity separate from the City. City of Malden, 20 MLC at 1405, FN 3. We found that the Malden Retirement Board is organized pursuant to a state statute and is both fiscally and administratively autonomous from the City. See Id. at FN3. Here, the Union has presented no affirmative evidence that would demonstrate that the Malden Retirement Board is no longer an independent entity of the City for administrative and fiscal purposes. See City of Brockton, 19 MLC 1139, 1147 (1992). Therefore, absent facts showing that the City and the Malden Retirement Board are no longer separate employers, it would be inappropriate to place the Retirement Board clerical employees in the same bargaining unit as the petitioned for City employees.

Based on the record and for the reasons stated above, we conclude that a question of representation has arisen concerning certain employees of the City of Malden and that the following constitutes an appropriate bargaining unit within the meaning of Section 3 of the Law: All full-time and regular part-time employees of the City of Malden employed in the characterizations listed in Appendix "A", but excluding all managerial, confidential and casual employees, and all other employees.

IT IS HEREBY DIRECTED that an election by secret ballot shall be conducted to determine whether a majority of employees in the above-described bargaining unit desire to be represented by the National Association of Government Employees, or by no employee organization. The eligible voters shall include all those persons within the above-described unit whose names appear on the City's payroll for the payroll period for the week ending the Saturday preceding the date of this decision and who have not yet since quit or been discharged for cause. To ensure that all eligible voters shall have the opportunity to be informed of the issues and the statutory right to vote, all parties to this election shall have access to a list of voters and their addresses which may be used to communicate with them.

Accordingly, IT IS HEREBY FURTHER DIRECTED that two (2) copies of an election eligibility list for each of the bargaining units containing the names and addresses of all eligible voters must be filed by the City with the Executive Secretary of the Commission, 399 Washington Street, 4th Floor, Boston, MA 02108-5213 no later than fourteen (14) days from the date of this decision.

The Executive Secretary shall make the list available to all parties to the election. Failure to submit this list in a timely manner may result in substantial prejudice to the rights of the employees and the parties, therefore, no extension of time for filing the list will be granted except under extraordinary circumstances. Failure to timely comply with this direction may be grounds for setting aside the election, should proper and timely objections be filed.

SO ORDERED.

APPENDIX (omitted)

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[1] Pursuant to 456 CMR 14.08, the Commission in representation cases issues a decision in the first instance without first having the Commission agent who presided over the hearing issue recommended findings of fact.

[2] The Commission's jurisdiction in this matter is uncontested.

[3] Clerical employees do not wear a uniform.

[4] The clerical employees began working this schedule during the current mayoral administration. However, because this schedule created a hardship for several employees, the City permitted these employees to continue their prior hours of work.

[5] City Hall is open to the public during these same hours.

[6] The police department employs five clerical employees, including two clerks and an administrative assistant, who work in the police division and two clerks who work in the traffic division.

[7] The position of clerk to the Board of Appeals is currently vacant.

[8] The police department employs one hundred and six sworn police officers. Although the City funds the police officers' salaries out of the police division budget, police officers work in both the police and traffic divisions.

[9] The police department assigns one uniformed police officer per shift to perform dispatching duties.

[10] Cadets interact with the police department's clerical employees when processing paperwork or retrieving documents from files.

[11] Generally, the officer in charge is a lieutenant, but on certain shifts, the officer in charge is a sergeant.

[12] The police department has a police officer who is certified as a trainer for the E-911 system

[13] When a vacancy exists for a cadet, the City's Human Resources Department posts the opening. Chief Aucoin and two other police officers then form a committee to interview the applicants. An applicant must be eighteen years old, have a high school diploma and have no criminal record.

[14] Cadets who work for the City for two years and who take the Civil Service Examination to become a police officer will earn two additional points on their exam scores.

[15] Cadets bid on their shifts. Because many of the cadets attend college, their work schedules frequently change each semester. If a cadet is absent from a shift, either another cadet or a police officer will fill in for the absent cadet.

[16] The cadet at the front desk works in close proximity to the police department's clerical employees.

[17] A vacancy also exists for a matron to be on call seven days per week from 7:00 PM to 7:00 AM.

[18] The area where the matron monitors female prisoners is not located in the same area of the police station where the clerical employees work.

[19] If Armstrong has formed a close relationship with a victim, she may accompany the victim to court proceedings. However, the district attorney's office employs a court advocate whose role is to represent and to assist the victim in court.

[20] The police department has employed a domestic violence advocate for approximately eight years.

[21] The school crossing guards also work out of the traffic division. The school crossing guards work one hour in the morning and one hour in the evening when school is in session helping schoolchildren cross busy streets and intersections. The school crossing guards are members of a separate bargaining unit.

[22] The City's police officers, two compliance officers in the City's compliance bureau and the animal control officer also have the authority to issue citations to citizens who violate municipal regulations.

[23] The police department also issues jackets and raincoats to the parking enforcement officers.

[24] If a parking enforcement officer uses a City vehicle, the parking enforcement officer returns the vehicle to the police department parking lot at the end of the shift.

[25] After completing the necessary paperwork, the clerk delivers the copies of the parking tickets to the Treasurer's Office, where citizens actually pay their parking tickets.

[26] The record is silent about the number of hours that the full-time parking enforcement officers work