STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 02-UD-03
Issued: May 31, 2002
_____________________________________
)
CORPORALS AND SERGEANT(S), )
CUMBERLAND COUNTY SHERIFF'S OFFICE, )
)
Petitioner, )
)
and )
)
AFSCME COUNCIL 93, ) UNIT DETERMINATION
) REPORT
Certified Bargaining Agent )
)
and )
)
CUMBERLAND COUNTY COMMISSIONERS, )
)
Employer )
_____________________________________)
PROCEDURAL HISTORY
This unit determination proceeding was initiated on
October 31, 2001, when Steven Breton for the Corporals and
Sergeants, Cumberland County Sheriff's Office, filed a petition
for unit determination and decertification/bargaining agent
election with the Maine Labor Relations Board ("Board"). The
petition seeks a determination whether a unit consisting of staff
sergeants, sergeants and corporals should be severed from the
existing Cumberland County Sheriff's Department bargaining unit
pursuant to Sections 966 and 967 of the Municipal Public
Employees Labor Relations Law ("MPELRL"). In the petition, the
prospective bargaining agent for this unit was identified as the
Maine Association of Criminal Justice Professionals ("MACJP").
Council 93, American Federation of State, County and Municipal
Employees, AFL-CIO ("AFSCME") is the certified bargaining agent
for the Cumberland County Sheriff's Department bargaining unit.
Both the Cumberland County Commissioners ("employer") and AFSCME
[-1-]
_________________________________________________________________
filed a timely response to the petition.
The hearing examiner convened two prehearing conferences by
telephone in this matter, on January 10, 2002, and January 28,
2002. The Prehearing Conference Memorandum and Order dated
January 30, 2002, is incorporated herein by reference. A hearing
notice was issued on February 8, 2002, and was posted for the
benefit of affected employees. The hearing was conducted on
March 4, 2002, with a continued hearing conducted on March 29,
2002. Daniel R. Felkel, Esq., appeared on behalf of the
petitioner/MACJP. Robert Van Campen, Esq., appeared on behalf of
AFSCME. Annalee Rosenblatt appeared on behalf of the employer.
The parties were afforded full opportunity to examine and cross-
examine witnesses, and to present evidence. The following
witnesses were presented at the hearing: for the Petitioner/
MACJP: Lieutenant Rodney Sparkowich, Staff Sergeant Stephen
Breton, and Annalee Rosenblatt; for AFSCME: James Beaulieu,
Corporal Stephen Vail, and Sergeant David Moore; for the
employer: Major Jeffery Newton. The parties presented written
argument following the conclusion of the hearing, on April 22,
2002.
JURISDICTION
The jurisdiction of the hearing examiner to hear this matter
and to make an appropriate unit determination herein lies in
26 M.R.S.A. 966.
FINDINGS OF FACT
1. The Cumberland County Sheriff's office is divided into
two divisions: corrections and field services. The corrections
division operates the Cumberland County jail and all services
related to jail operations. The field services division operates
other services such as the road patrol, criminal investigations,
-2-
_________________________________________________________________
and communications.
2. The Cumberland County Sheriff's Department bargaining
unit ("unit") contains positions in both the corrections and the
field services divisions. A large number of positions in the
corrections division are contained in the unit (such as
corrections officers, corporals, sergeants, intake supervisor,
property officer, work release officers, education technician,
etc). A smaller number of positions in the field services
division are contained in the unit (such as civil deputy, crime
analyst, administrative secretary, communications supervisor,
dispatchers, etc.). Appendix A, which was derived from joint
exhibits 1 and 2, is an abbreviated organizational chart showing
the placement of bargaining unit positions within the Sheriff's
Department.
3. Some positions in the bargaining unit (especially those
in the field services division) have no connection with jail
operations and are not located at the jail. For instance,
employees in communications work in a separate facility in
Windham, dispatching patrol officers and emergency services.
Employees in the civil deputy office work in a separate facility
and process and serve papers.
4. All of the bargaining unit employees employed at the
jail are charged with the care, custody and control of inmates in
some fashion.
5. A corrections officer (CO) must have a high school
degree and three years' post-secondary employment or a
combination of education and employment equal to three years.
They are required to complete the Maine Criminal Justice Academy
(MCJA) basic corrections course in the first year of employment.
6. A corporal must have two years of service in
-3-
_________________________________________________________________
corrections, 12 months' experience as an officer-in-charge, and
must have completed the MCJA basic corrections course.
7. A sergeant must have three years of service in
corrections, 12 months' experience as an officer-in-charge or
corporal, and must have completed the MCJA basic corrections
course.
8. Corporals and sergeants are selected based on scoring
after a written examination, interview by an oral board made up
of members of management and labor, and review of the candidate's
personnel file.
9. The CO's have the most direct, day-to-day duties
attending to the care, custody and control of inmates. The
supervisory positions at issue in this petition (corporals,
sergeants and staff sergeants) all perform some of the same
direct duties of the CO's, but have additional supervisory
responsibilities as more fully described below.
10. The corporals, sergeants and staff sergeants are all
empowered to administer discipline up to a written reprimand to
those positions below them. The steps of discipline are oral
counseling (not placed in personnel file), written warning,
written reprimand, suspension and discharge. Before supervisors
administer written discipline, they must have the discipline
reviewed by a captain who checks the employee's personnel file in
order to determine whether the level of discipline is
appropriate.
11. While empowered to administer written warnings or
reprimands, corporals are less likely to carry out this task,
except in the absence of their supervising sergeant.
12. If a supervisor recommends discipline more serious than
-4-
_________________________________________________________________
a written reprimand, the supervisor prepares a report which is
sent up the chain of command to the chief deputy. This normally
results in the chief deputy ordering an internal affairs
investigation and further action which does not involve the
supervisor.
13. Corporals, sergeants and staff sergeants are empowered
to write annual performance evaluations for those employees below
them whom they have had the opportunity to observe. These
evaluations are reviewed by a lieutenant or captain for accuracy
and rating.
14. There are three staff sergeant positions: the intake
unit supervisor, the transportation unit supervisor and the food
service supervisor. The food service supervisor (along with
other food service employees) is not part of the Sheriff's
Department bargaining unit. The intake unit supervisor
supervises intake sergeants and officers, classification
technicians, the property officer and the records clerk. The
transportation unit supervisor supervises the transportation and
court officers (no sergeants or corporals). The food service
supervisor supervises the cooks (no sergeants or corporals).
These positions were created in 1998, as more fully described in
Findings of Fact No. 26.
15. The staff sergeants are in charge of the overall
operations of their respective unit at all times (not just on a
particular shift, which is the extent of the authority of
sergeants and corporals).
16. Staff sergeants are in charge of scheduling; corporals
and sergeants do not perform this function.
17. Staff sergeants report directly to their respective
captain (captain of operations and security or captain of
-5-
_________________________________________________________________
administration and support). Most sergeants report to
lieutenants; corporals report to sergeants.
18. Staff sergeants attend periodic management meetings,
where they may receive confidential information and instructions.
Such meetings are not attended by either the sergeants or
corporals.
19. The staff sergeants, sergeants and corporals are not
directly involved in hiring or promoting subordinates. None of
these positions is authorized to adjust grievances that might be
filed by subordinates.
20. The bargaining unit has been in existence since 1981.
AFSCME has represented the bargaining unit since its inception.
AFSCME and the employer have negotiated six or seven successive
collective bargaining agreements (CBA's), all of two or three-year
duration. The most recent CBA's have covered the periods from
January 1, 1999, to December 31, 2001, and from January 1, 2002,
to December 31, 2004.
21. The parties have used mediation at times in settling
past CBA's. The parties have gone to fact-finding to settle one
CBA. The parties have never been to interest arbitration to
settle a CBA.
22. AFSCME and the employer have maintained generally good
labor relations throughout their collective bargaining history.
The parties have not experienced any particular difficulties in
bargaining for a bargaining unit which is composed of such
diverse positions.
23. Grievances filed by AFSCME on behalf of bargaining unit
members have gone to arbitration about 35 times since 1994. In
the last few years (only), AFSCME has prevailed in all grievances
-6-
_________________________________________________________________
that have gone to arbitration.
24. No complaints alleging a violation of the duty of fair
representation have been filed by any bargaining unit member
against AFSCME with the Maine Labor Relations Board since the
inception of the bargaining unit.
25. The 1996-1998 CBA moved the CO's from pay range 2 to
pay range 3. There was no commensurate change in pay grade for
the corporals or sergeants, which caused resentment amongst some
employees who held these supervisory positions.
26. In 1998, the employer conducted a wage and compensation
study of certain positions in the bargaining unit. One result of
this study was that the employer recommended that the positions
of intake unit supervisor, transportation unit supervisor and
food service supervisor (all at that time with the rank of
sergeant), be elevated to the rank of staff sergeant with a raise
in pay. The employer and AFSCME negotiated over this proposed
change. The parties agreed to the increase in rank for the
positions, and a change in pay range from range 5 to range 6.
The AFSCME Executive Board insisted that the positions be filled
through the promotion process (i.e., the persons in the positions
needed to compete for the promotion to the staff sergeant rank).
The employees who held the positions all competed for and
received the staff sergeant position. However, the need to
compete for the position caused some resentment amongst the
affected employees against AFSCME.
27. The 1999-2001 CBA contained across-the-board wage
increases for the members of the bargaining unit. While this
caused some "stretch" in the wages paid to the corporals and
sergeants (since they were higher paid than the CO's), there was
no provision in this CBA to single these positions out for more
-7-
_________________________________________________________________
pay than the CO's.
28. Mid-term during the 1999-2001 CBA, the parties
negotiated a wage increase for employees with correction officer
certificates and for employees with more than three years of
tenure. The wage increase affected most of the CO's, corporals
and sergeants. The employer particularly wanted this increase in
wages in order to attract and retain employees to the CO
position, which the employer perceived to be a problem at that
time.
29. In negotiating the 2002-2004 CBA, the parties used
interest-based bargaining. About 85 proposals were brought to
the table, 72 from AFSCME. The five-member bargaining team for
the unit was headed by a corporal, who was well prepared and
represented the interests of the unit very well.
30. In this negotiation, the employer continued to be
interested in attracting and retaining CO's. In addition, the
employer was interested in increasing the pay of the corporals
and sergeants because the employer felt that qualified CO's were
not seeking a promotion because the pay difference did not match
the increased responsibilities of the supervisory positions. The
employer proposed the greatest wage increase for CO's in the
first year of the contract, and the greatest wage increase for
the corporals and sergeants in the second year of the contract.
AFSCME sought across-the-board raises, and also a change in the
pay scale to reflect years of services. The employer's wage
proposal was eventually adopted in the CBA.
31. In the current CBA, the pay scale for 2002 is increased
by three percent plus $1.00 per hour for all positions. The pay
scale for 2003 will be increased by three percent plus $.50 per
hour for all non-supervisors; three percent plus $1.50 per hour
-8-
_________________________________________________________________
for corporals; and three percent plus $1.75 per hour for
sergeants. The pay scale for 2004 will be increased by three
percent plus $1.00 for all CO's, corporals and sergeants. As the
result of these increases, the corporals and sergeants in this
bargaining unit will be the highest paid corrections officers of
their rank in the state at the end of this CBA.
32. The 2002-2004 CBA was ratified by members of the
bargaining unit by a vote of 92 to 8.
33. There has been little actual conflict in the bargaining
unit caused by the fact that the staff sergeants, sergeants and
corporals are in the same unit as the CO's, whom they supervise.
However, some supervisors are concerned that the CO's think the
supervisors will be "soft" on them since they are all in the same
unit. The employer is concerned that supervisors might not be as
forthright in arbitrations against subordinates in their same
unit; AFSCME does not believe this is a legitimate concern.
34. The supervisors in the bargaining unit have not held
themselves out as a separate or independent part of the
bargaining unit. Some supervisors have been very active in union
affairs, while others have not. Lieutenant Rodney Sparkowich,
when he was employed as a sergeant and staff sergeant, was a
long-time shop steward, member of the negotiating committee, and
union president. On the other hand, staff sergeant Steve Breton
(the petitioner) has had minimal involvement in union positions
and activities.
35. AFSCME has not singled out the corporals and sergeants
for different treatment than the CO's and other members of the
bargaining unit. AFSCME has represented the supervisors in
grievances, for instance, in the same manner as for the rest of
the members.
-9-
_________________________________________________________________
36. Any dues-paying member of AFSCME in the bargaining unit
can be on the bargaining team, although sometimes the number of
members of the team is limited as part of the negotiation ground
rules. Any dues-paying member of AFSCME in the bargaining unit
can submit proposals for CBA negotiation, and such proposals will
be brought to the table.
37. In around 1999, Lieutenant (then Staff Sergeant)
Sparkowich asked AFSCME business agent Jim Beaulieu whether
AFSCME might consider representing a separate unit of
supervisors. This was said during the course of an unrelated
grievance. Mr. Beaulieu did not believe this was a good idea at
that time.
38. The first time that AFSCME was aware that a group of
supervisors was interested in a separate unit was in 2000. In
the summer of 2000, Mr. Beaulieu met with a group of supervisors
interested in separating from the bargaining unit. He advised
the group that AFSCME maintained an internal policy that
prevented it from representing units smaller than 30 employees.
He also advised the group that he believed the smaller group
would be less effective during negotiations.
39. No supervisor ever requested that AFSCME assign a
separate shop steward just for supervisors. Lieutenant
Sparkowich served in this capacity in a de facto fashion during
his long years of service as a shop steward.
40. In the last few years, some supervisors have believed
that the added responsibility of their positions warranted a
higher wage or wage-and-benefit package to separate their level
from that of the CO's. However, no supervisor ever approached
AFSCME and requested that this be part of the union's bargaining
position during CBA negotiations.
-10-
_________________________________________________________________
41. No supervisor ever approached AFSCME and requested any
contract proposal specifically benefitting them or applicable
solely to their position.
PREHEARING STIPULATIONS
[Some changes have been made to the parties' stipulations by the
hearing officer to improve readability. All changes are
indicated by brackets.]
SIMILARITY IN KINDS OF WORK PERFORMED
1. All corporals and all sergeants in the proposed unit,
except the communications supervisor, have care, custody, and
control of inmates as their responsibility.
2. All corporals and sergeants in the proposed unit, except
the communications supervisor, supervise certified corrections
officers.
3. The sergeants have corporals reporting to them, except
for the communications supervisor (sergeant), who has dispatchers
reporting to him.
4. The corporals have correction officers reporting to
them.
COMMON SUPERVISION AND DETERMINATION OF LABOR RELATIONS POLICIES
1. The Sheriff's department has two divisions; field
services division and corrections division.
2. All sergeants and corporals, except the communications
supervisor, [are] in the corrections division. The
communications supervisor is in the county's executive
department.
3. The corrections division is managed by the Jail
Administrator. The Jail Administrator reports to the Chief
Deputy of the Department. The Chief Deputy is an appointed
position who serves at the pleasure of the Sheriff.
-11-
_________________________________________________________________
4. There are two captains in the jail division - one for
operations and security and one for administration and support.
The corrections' shift lieutenants and transport supervisor
(staff sergeant) report to the captain for operations and
security. The intake supervisor (staff sergeant) reports to the
captain for administration and support.
5. There are shift lieutenants who report to the captain of
operations and security. Area sergeants report to the shift
lieutenants along with the transport supervisor (staff sergeant).
6. The corporals report to the area sergeants.
7. The intake sergeants report to the intake supervisor
(staff sergeant)
8. In the field services division the communications
captain reports to the County Manager.
9. The communications supervisor (sergeant) reports to the
communications captain.
10. Dispatchers report to the communications supervisor
(sergeant)
11. All the proposed unit positions are currently covered
by a labor agreement for the year January 1, 2002, through
December 31, 2004. The labor relations policies are determined
by three elected County Commissioners in negotiations with
Council 93, AFSCME.
SIMILARITY IN THE SCALE AND MANNER OF DETERMINING EARNINGS
1. The positions of sergeant and corporal are currently
covered by a collective bargaining agreement. The pay is
determined by collective bargaining. The positions are paid an
hourly rate based on their placement on a salary grid. In
addition, they are eligible for longevity pay at 10 and 15 years
of service. They are eligible for shift differentials and,
except for the communications supervisor, payment when
functioning as a field training officer. Except for the
-12-
_________________________________________________________________
communications supervisor, they are also eligible for longevity
pay at 3 years and 5 years of service and upon achieving master
corrections designation receive additional pay. All positions
are eligible for additional wages for an associate's and
bachelor's degree.
2. The position of corporal is a grade 4; the position of
communications supervisor and sergeant is grade 5; the positions
of intake supervisor (staff sergeant) and transportation
supervisor (staff sergeant) is grade 6. In 2002, grade 4 base
pay ranges from $13.16 to $16.70 per hour, grade 5 from $13.48 to
$16.70 per hour; and grade 6 from $13.99 to $17.47 per hour.
SIMILARITY IN EMPLOYMENT BENEFITS, HOURS OF WORK AND OTHER TERMS
AND CONDITIONS OF EMPLOYMENT
All sergeants and corporals in the proposed unit are
eligible for identical benefits, all perform shift work on a
seven day, twenty-four hour basis. The one exception as noted
above, is the communications supervisor is not eligible for FTO
pay. All sergeants and corporals in the proposed unit, except
for the communications supervisor work 5 eight-hour shifts. The
communication supervisor works 2 twelve-hour shifts and 2 eight-
hour shifts on a four-days-on and three-days-off schedule.
SIMILARITY IN THE QUALIFICATION, SKILLS, AND TRAINING OF
EMPLOYEES
1. All positions in the proposed unit must have a high
school degree or equivalent.
2. All positions in the proposed unit must graduate from
the Maine Criminal Justice Academy basic corrections course or
[receive a] waiver, except for the communications supervisor.
3. All positions in the proposed unit must be familiar with
Maine Jail Standards, Department Operating Procedures, and Policy
and Procedure Manual, except the communications supervisor.
4. In addition, the intake supervisor must be familiar with
-13-
_________________________________________________________________
the Accreditation Standards and the Maine Bail Code, hold rank of
corporal or sergeant at time of promotion, and [have] previous
qualification in intake or [have] ability to function under
stress and time constraints.
5. In addition to numbers 1-3 above, the transportation
unit supervisor must successfully complete the pre-service law
enforcement course from the Maine Criminal Justice Academy, hold
the rank of corporal or sergeant, and [be] transport-qualified,
with a knowledge of basic first aid, mental health laws, criminal
code, and proper radio procedure, and have previous experience in
a supervisory capacity.
6. In addition to number 1 above, the communications
supervisor must have demonstrated proficiency in communications
skills, must be able to pass terminal operators control course,
have working knowledge of Maine statutes and familiarity with
Maine Telecommunications and Radio Operations Manual, National
Crime Information Central Manual and National Law Enforcement
Telecommunications System, and [have] 5 years experience as a
dispatcher for the Sheriff's Department.
7. Corporals and Sergeants must be able to physically
control violent/unruly members of inmate population.
8. Two years of uninterrupted service in corrections [are
required] for corporals and 3 years for sergeants.
9. Twelve months supervisory and leadership skills [are
required] for corporals and 12 months experience in supervision
[is required] for sergeants.
FREQUENCY OF CONTACT OR INTERCHANGE AMONG THE EMPLOYEES
The intake and transport supervisors work a Monday-through-
Friday day-shift schedule. The other sergeants and corporals,
except the communications supervisor, work different shifts and
do not necessarily have weekends off. Within those parameters,
some contact would be occasional and would depend on days off
-14-
_________________________________________________________________
while others would be daily. The communications sergeant would
never have contact with the other employees.
GEOGRAPHIC PROXIMITY
All positions in the proposed sergeant and corporal unit
work out of the county jail in Portland. The communications
supervisor works out of the communications center in Windham.
HISTORY OF COLLECTIVE BARGAINING
Since about 1982, the sergeants and corporals have been
covered by a collective bargaining agreement and represented by
Council 93, AFSCME. The original bargaining unit was formed by
voluntary agreement.
DESIRES OF THE AFFECTED EMPLOYEES
The Employer is unable to comment upon the desires of the
affected employees.
EXTENT OF UNION ORGANIZATION
There are two bargaining units: Teamsters Local 340
represents patrol deputies, sergeants, and lieutenants in the
field services division of the Sheriff's Department.
AFSCME Council 93 represents correction officers, including
sergeants and corporals, lobby receptionist, receptionist clerk,
records clerk, dispatchers, administrative secretary, education
technician, administrative civil deputy, civil deputies,
community release planner and communications supervisor. All are
in the corrections division except communications supervisor,
dispatcher, administrative civil deputy, and civil deputies, who
are in the field services division.
-15-
_________________________________________________________________
THE EMPLOYER'S ORGANIZATION STRUCTURE
At the top of the organization structure are the three
elected County Commissioners. There is a County Manager who
reports to the Commissioners. There is a Deputy County Manager,
Director of Human Resources, Director of Budget and Planning,
Computer System Administrator, and Deputy County Clerk who report
directly to the County Manager.
The next tier of the organizational structure are the
various departments of County Government, most of which are
headed by elected officials, one of which is the Sheriff's
Department.
The Sheriff's Department is divided into two divisions.
The Field Services Division is organized as follows:
Sheriff - Executive Assistant and Chief Deputy reports
to this position.
Chief Deputy - Communications Captain, Field Service
Captain, Criminal Investigation Captain, and
Administrative Lieutenant for Internal Affairs
reports to this position.
Communication Captain - Communications sergeant and
secretary report to this position.
Field Services Captain - Two field service lieutenants
report to this position.
Field Service Lieutenants - Sergeants and road deputies
report to this position.
Criminal Investigation Captain - Administrative,
Training, and CID Lieutenants report to this
position.
Administrative Lieutenant - Detectives, secretary,
civil deputies, school resource officers, crime
analyst, community liaison officer, and complaint
officer report to this position.
-16-
_________________________________________________________________
The Jail Division is organized as follows:
Sheriff - Executive Assistant and Chief Deputy reports
to this position.
Chief Deputy - Jail Administrator reports to this
position.
Jail Administrator - Executive secretary,
administrative services lieutenant (accreditation
manner), the captains for administration/support
and operations/security report to this position.
Captain for Operations and Security - Shift
lieutenants, transport supervisor (staff sergeant)
recreation officer and inventory control
coordinator reports to this position.
Shift Lieutenants - The area sergeants and lobby
officers report to this position.
Area Sergeants - Corporals report to this position.
Transport Supervisor (Staff Sergeant) - Transport and
court officers report to this position.
Corporals - Correction officers report to these
positions.
Captain for Administration and Support - Food service
supervisor, education coordinator, intake
supervisor, health service administrator,
chaplain, and lieutenant for community corrections
reports to this position.
Food Service Supervisor - Cooks I and II report to this
position.
Education Coordinator - the education technicians and
librarian report to this position.
Intake Supervisor (Staff Sergeant) - Intake sergeants,
classification technicians, property officers, and
records clerk report to this position.
Intake Sergeants - Intake officers report to this
-17-
_________________________________________________________________
position.
Health Service Administrator - Substance abuse
counselors, mental health counselors, and nurses
report to this position. (This service is a sub-
contractor).
Lieutenant - Community Corrections - Vocational
teachers, community release planner, work release
officers, community services officers, and
electronic monitoring officers report to this
position.
Vocational Teacher - Education technician and trustee
coordinator report to this position.
OTHER STIPULATIONS
1. Council 93, American Federation of State, County and
Municipal Employees, AFL-CIO ("AFSCME") is a public employee
organization that is the certified bargaining agent for the
Cumberland County Sheriff's Department Bargaining Unit, within
the meaning of 26 M.R.S.A. 962(2).
2. The Maine Association of Criminal Justice Professionals is a
public employee organization that seeks to become the bargaining
agent for a unit consisting of staff sergeants, sergeants and
corporals (currently part of the Cumberland County Sheriff's
Department Bargaining Unit), within the meaning of 26 M.R.S.A.
962(2).
3. The Cumberland County Commissioners are a public employer
within the meaning of 26 M.R.S.A. 962(7).
4. There is neither a contract bar nor an election bar to the
Unit Determination-Decertification-Bargaining Agent Election
Petition filed on October 13, 2001, that is the subject of this
proceeding.
-18-
_________________________________________________________________
5. The Cumberland County Sheriff's Department Bargaining Unit was
created by the filing of an Agreement on Appropriate Bargaining
Unit dated December 14, 1981. At that time, the unit was
composed of the following positions: assistant jail
administrator, lieutenant, sergeants, corporals, patrol deputies,
detention officers, court officer, bailiff, medics,
transportation officer, court building security officer, cook,
recreation officer, work release officer, crime analyst,
dispatchers, records director, records clerks, jail social
worker, maintenance person, mechanic, detectives, and intake
officers.
EXHIBITS
The parties agreed to the submission of the following joint
exhibits:
Exhibit No. Name Date
1. Organizational Chart - Jail Division 11/1/01
Organizational Chart - Field Services
Division 1/4/02
2. Job Description - Corrections Officer 9/21/01
3. Job Description - Corrections Corporal 9/21/01
4. Job Description - Corrections Sergeant 9/21/01
5. Job Description - Transportation
Unit Supervisor (Staff Sergeant) 9/21/01
6. Job Description - Intake Unit
Supervisor (Staff Sergeant) 9/21/01
7. Job Description - Communications
Supervisor 10/01/01
8. Job Description - Complaint Officer 9/21/01
9. Job Description - Lobby Receptionist 9/21/01
-19-
_________________________________________________________________
10. Job Description - Receptionist/Clerk 10/01/01
11. Job Description - Records Clerk 9/21/01
12. Job Description - Corrections Officer II 9/21/01
13. Job Description - Dispatcher 10/01/01
14. Job Description - Administrative
Secretary 2/5/02
15. Job Description - Crime Analyst 10/01/01
16. Job Description - Education Technician 9/21/01
17. Job Description - Electronic
Monitoring Officer 9/21/01
18. Job Description - Property Officer 9/21/01
19. Job Description - Transportation Officer 9/21/01
20. Job Description - Administrative Civil
Deputy 10/01/01
21. Job Description - Civil Deputy 10/01/01
22. Job Description - Community Services
Officer 9/21/01
23. Job Description - Recreation Officer 9/21/01
24. Job Description - Trustee Coordinator 9/21/01
25. Job Description - Work Release Officer 9/21/01
26. Collective Bargaining Agreement 1/1/02 - 12/31/04
The following exhibits were admitted without objections:
MACJP-1. Affidavit of Steve Breton
MACJP-2. Affidavit of Steve Butts
MACJP-3. Affidavit of Larry LaPointe
MACJP-4. Affidavit of Glenn MacDonald
MACJP-5. Affidavit of Stephen Vail
-20-
_________________________________________________________________
MACJP-6. Affidavit of David Moore
AFSCME-1. Affidavit of Donald Young
AFSCME-2. Affidavit of Stephen Robinson
AFSCME-3. Affidavit of David Dunnemann
AFSCME-4. Affidavit of Joad Welch
AFSCME-5. Affidavit of Thomas Wiley
AFSCME-6. Affidavit of Sean Brown
AFSCME-7. Affidavit of David Moore
AFSCME-8. Affidavit of Stephen Vail
AFSCME-9. Affidavit of Jennifer Reed
AFSCME-10. Affidavit of Charles Ryder
AFSCME-11. Affidavit of Carl Hitchcock
AFSCME-12. Affidavit of Glenn MacDonald
DISCUSSION
The issue presented by this case is whether a group of
corporals and sergeants, now a part of the Cumberland County
Sheriff's Department bargaining unit, should be allowed to sever
from that unit and become a separate bargaining unit. The
petitioner argues that the severance petition[fn]1 should be granted
because the corporals and sergeants share a clear community of
interest, and do not share a community of interest with the
present, larger bargaining unit. The employer concurs in this
argument, although urging that the severed bargaining unit should
____________________
1 As described more fully below, the proper mechanism to seek the
severance of a unit is to file a petition for a unit determination, as
the petitioner has done here. The Board Rules do not provide for a
"petition for severance" per se; however, for ease of reference the
petition will be referred to as one for severance for the remainder of
the decision.
-21-
_________________________________________________________________
include additional supervisory classifications.[fn]2 AFSCME argues
that the severance petition should be denied because the
present unit shares a community of interest, has a long and
stable history of collective bargaining, and because AFSCME has
provided adequate representation for the entire unit, including
the corporals and sergeants.
The Board has ruled that a unit determination petition
accompanied by an adequate showing of interest is the proper
mechanism for attempting to sever a bargaining unit from an
existing unit. See Teamsters Local No. 48 and State of Maine
(Institutional Services Unit), et al., No. 84-A-02 (MLRB Apr. 2,
1984); City of Bangor and Local 1599, IAAF, No. 80-A-03, at 3-4
(MLRB July 18, 1980). The petitioner here has presented a
sufficient petition accompanied by an adequate showing of
interest from employees currently holding corporal or sergeant
positions. As a unit determination, this matter turns upon an
evaluation of the presence or absence of a "clear and
identifiable community of interest" per 26 M.R.S.A. 966(2). In
determining whether employees share the requisite community of
interest in matters subject to collective bargaining, the
following factors, at a minimum, must be considered: (1)
similarity in the kind of work performed; (2) common supervision
and determination of labor relations policy; (3) similarity in
the scale and manner of determining earnings; (4) similarity in
employment benefits, hours of work and other terms and conditions
of employment; (5) similarity in the qualifications, skills and
____________________
2 The issue of whether additional supervisory classifications
should be added to the corporal and sergeant unit, if this unit should
be severed, is not properly before the hearing officer in this matter.
A separate petition was filed with the Board on October 23, 2001, for
a unit determination and bargaining agent election regarding certain
lieutenant classifications also employed in the Cumberland County
Sheriff's Department (Case No. 02-UD-02). These classifications are
currently unrepresented. The prospective bargaining agent for this
unit is also the MACJP. This matter is being held in abeyance,
pending the outcome of the present matter.
-22-
_________________________________________________________________
training among the employees; (6) frequency of contact or
interchange among the employees; (7) geographic proximity; (8)
history of collective bargaining; (9) desires of the affected
employees; (10) extent of union organization; and (11) the
employer's organizational structure. Chap. 11, Sec. 22(3) of the
Board Rules. The requirement that the hearing examiner examine
the extent of the community of interest was explained by the
Board over 20 years ago, and is still valid today:
Title 26 M.R.S.A. 966(2) requires that the hearing
examiner consider whether a clear and identifiable
community of interest exists between the positions in
question so that potential conflicts of interest among
bargaining unit members during negotiations will be
minimized. Employees with widely different duties,
training, supervision, job locations, etc., will in
many cases have widely different collective bargaining
objectives and expectations. These different
objectives and expectations during negotiations can
result in conflicts of interest among bargaining unit
members. Such conflicts often complicate, delay and
frustrate the bargaining process.
AFSCME and City of Brewer, No. 79-A-01, slip op. at 4 (MLRB
Oct. 17, 1979).
While a petition for severance entails the same analysis of
the community of interest factors as any unit determination
petition, the issues are more complex. The hearing examiner must
analyze both whether a community of interest exists amongst the
employee classifications in the proposed bargaining unit to be
severed, and also whether a community of interest exists amongst
the proposed bargaining unit and the larger existing unit. As
the National Labor Relations Board has noted, in its seminal
severance case Mallinckrodt Chemical Works and IBEW, Local No. 1,
162 NLRB 387 (1966), a severance determination requires a
balancing of competing interests:
The cohesiveness and special interest of a craft or
departmental group seeking severance may indicate the
-23-
_________________________________________________________________
appropriateness of a bargaining unit limited to that
group. However, the interests of all employees in
continuing to bargain together in order to maintain
their collective strength, as well as the public
interest and the interests of the employer and the
plant union in maintaining overall plant stability in
labor relations and uninterrupted operation ... may
favor adherence to the established patterns of
bargaining.
Mallinckrodt, at 392.
In addition, one of the eleven community of interest factors,
history of collective bargaining, receives heightened scrutiny in
a severance petition. Previous Board decisions have deemed the
history of collective bargaining to be a "very important" and
sometimes the decisive element in severance petitions. Cf.,
e.g., Teamsters Local No. 48 and Town of Winslow, No. 84-UD-17,
slip op. at 11 (MLRB May 31, 1984) (petition to sever fire
fighters from public works unit denied; bargaining history "long"
and "fruitful"); Council No. 74, AFSCME and Cumberland County,
No. 84-UD-11 (MLRB March 16, 1984), aff'd, No. 84-A-04 (MLRB
Apr. 25, 1984) (petition to sever patrol positions from
corrections positions granted; two-year bargaining history
cited). The NLRB also finds the history of collective bargaining
to be a key element in determining severance petitions. Kaiser
Foundation Hospitals and Independent Brotherhood of Skilled
Hospital Maintenance Workers, 312 NLRB 933, at 936 (1993) (Board
reluctant to disturb bargaining unit with long history of
continuous bargaining, even where Board would not have found the
unit appropriate if presented with the issue ab initio).
The burden on the petitioner seeking to sever positions out
of an existing unit is high. While severance petitions resolved
by hearing have not been numerous before the Board, the hearing
examiner is aware of only one severance petition that has been
granted in the Board's history, the petition to sever the patrol
positions from the present bargaining unit. Council No. 74,
-24-
_________________________________________________________________
AFSCME and Cumberland County, supra. The NLRB has found that the
party seeking severance clearly bears a "heavy burden." Kaiser
Foundation Hospitals, 312 NLRB at 935 fn.15. A recent NLRB case
affirmed by that Board reviewed the history of severance cases,
concluding that severance has been granted "sparingly" by the
NLRB. Metropolitan Opera Ass'n and Operatic Artists of America,
327 NLRB 740, at 752 (1999). One MLRB hearing examiner reviewed
precedent from public sector labor boards in other states,
concluding that those cases reflected the " . . . overwhelming
view that severance petitions, while procedurally permissible,
must nevertheless overcome formidable standards for success."
Teamsters Local No. 48 and City of Portland, No. 81-UD-10, slip
op. at 15 (MLRB July 10, 1981).
Before applying these standards to the present matter, the
hearing examiner will address the stipulations of fact. These
stipulations, initially submitted by the employer and stipulated
to by the other parties with little change, address the community
of interest factors as amongst the classifications in the
proposed severed bargaining unit of corporals and sergeants.
These stipulations establish that the staff sergeants, sergeants
and corporals are all supervisors in the Sheriff's Department
bargaining unit, with varying degrees of supervisory authority in
accordance with the chain of command. All of the supervisory
positions employed in corrections perform similar kinds of work -
the care, custody and control of inmates, and the supervision of
subordinate positions.[fn]3 All these supervisory positions have
____________________
3 The communications supervisor (a sergeant) actually performs
very different job functions from sergeants in the corrections
division. This position supervises dispatchers for patrol deputies
and for emergency services. This position works in the field services
division, and is the only supervisory position at issue which does not
work in the corrections division. This difference in kind of work
performed merely reflects the fact that the bargaining unit already
consists of positions with divergent duties in the chief deputy's
-25-
_________________________________________________________________
similar base qualifications, skills and training (high school
degree, completion of Maine Criminal Justice Academy basic
corrections course), with additional experience and service
required for each step in the chain of command. All are
supervised by positions higher in the chain of command depending
on the position: corporals by sergeants, sergeants by
lieutenants or captains, and staff sergeants by lieutenants or
captains. All of the positions are covered by a collective
bargaining agreement. Therefore, the labor relations policy is
commonly determined for the positions, the positions are paid in
a similar scale and manner, and the positions have similar
benefits, hours of work and other terms and conditions of
employment. Most of the positions have the ability to have
contact or interchange, although this is limited to some extent
by the job function and by the shift schedule. All of the
supervisor positions work at the jail, except for the
communications supervisor. The extent of union organization and
the employer's organizational structure both support a finding
that the supervisors share a community of interest. As more
fully described below, neither the history of collective
bargaining nor the desires of the employees clearly support a
finding that the supervisors should be severed from the present
bargaining unit. The majority of factors contained in Chap. 11,
22(3) of the Board Rules, however, support a finding that the
positions of staff sergeant, sergeant and corporal share a
community of interest.
The issue remains whether this group of supervisory
positions shares a community of interest with the remaining
positions in the present bargaining unit. Below, the hearing
examiner will more fully discuss each community of interest
_______________
business office, communications, criminal investigation, and
corrections.
-26-
_________________________________________________________________
factor as it relates to this larger question.[fn]4
(1) Similarity in kind of work performed. All of the positions
in the proposed supervisory bargaining unit (corporals,
sergeants, and staff sergeants) supervise subordinates pursuant
to the chain of command. The remaining positions in the
bargaining unit are "front line" positions with no supervisory
responsibilities. Unlike the National Labor Relations Act, the
MPELRL grants supervisors collective bargaining rights and
permits the inclusion of supervisors in bargaining units of
subordinate employees. In Penobscot Valley Hospital and Maine
Federation of Nurses and Health Care Professional, No. 85-A-01,
slip op. 8 (MLRB Feb. 6, 1985), the Board stated:
Section 966(1) does not require the exclusion of
supervisory employees from bargaining units composed of
the employees whom they supervise but relegates the
decision of the supervisory employees' unit status to
the sound discretion of the hearing examiner. MSAD No.
14 and East Grand Teachers Ass'n, MLRB No. 83-A-09, at
12 (Aug. 24, 1983). Except in instances where the
resulting one- or two- member supervisory unit would
contravene our policy of discouraging the
proliferation, through fragmentation, of small
bargaining units, we have approved the creation of such
separate supervisory units . . .
The Board has found that 26 M.R.S.A. 966(1) expresses a
preference that supervisory employees not be included in the same
bargaining unit with the employees whom they supervise. In Town
____________________
4 Regarding some of the community of interest criteria, the
hearing examiner has focused particularly on the relationship between
the corrections supervisors and those that they supervise in
corrections (the CO's and other subordinates in the chain of command).
It is the conflict or lack of conflict between these positions which
was the particular focus of the parties at the hearing. The
bargaining unit is so diverse currently that no other comparison makes
sense. Neither a corrections staff sergeant nor a CO have a similar
job to a business office secretary, for example. Yet all these
diverse positions have been able to function as a collective unit for
purposes of collective bargaining for over 20 years.
-27-
_________________________________________________________________
of Kittery and Teamsters Local No. 48, No. 83-A-02, slip op. at 4
(MLRB Feb. 7, 1983), the Board recognized that the inclusion of
supervisory employees in the same unit with the employees whom
they supervise could result in a conflict of loyalties on the
part of the supervisors, between that owed to the employer and
that felt for fellow unit members, and such conflict could
interfere with the effective supervision of the subordinate
employees.
26 M.R.S.A. 966(1) gives guidance to the hearing examiner
in identifying situations where conflicting interests and
loyalties may arise. The relevant portion of 966(1) states:
In determining whether a supervisory position should be
excluded from the proposed bargaining unit, the
executive director or his designee shall consider,
among other criteria, if the principal functions of the
position are characterized by performing such
management control duties as scheduling, assigning or
overseeing and reviewing the work of subordinate
employees, or performing such duties as are distinct
and dissimilar from those performed by the employees
supervised, or exercising judgment in adjusting
grievances, applying other established personnel
policies and procedures and in enforcing a collective
bargaining agreement or establishing or participating
in the establishment of performance standards for
subordinate employees and taking corrective measures to
implement those standards.
While bearing in mind that this is a severance petition and not a
unit determination petition for a new bargaining unit, the
hearing examiner believes that 966(1) provides guidance on the
issue of whether the corporals, sergeants and staff sergeants
perform similar kinds of work as their subordinates, one of the
key elements when evaluating the existence of a community of
interest.
Under the first prong of the test outlined in 966(1), the
hearing examiner must evaluate whether the principal functions of
-28-
_________________________________________________________________
the position involve scheduling, assigning, overseeing or
reviewing the work of subordinates. Of the positions at issue,
only the staff sergeant participates in scheduling; the corporals
and sergeants do not. The staff sergeants are in charge of the
overall operations of their respective units; sergeants are
responsible only for the operations of their shift; corporals
have even less shift supervisory responsibility (unless they are
serving in the place of an absent sergeant). All of the
positions are empowered to write annual performance evaluations
for subordinates whose performance they have observed, but these
evaluations are reviewed by a lieutenant or captain. All of the
positions are empowered to administer discipline up to a written
reprimand, but corporals are very unlikely to use this authority
in the real day-to-day operations of the jail.
In applying the first prong of the test to the positions at
issue, one fact is abundantly clear - the positions of corporal,
sergeant and staff sergeant do not share the same level of
supervisory authority. As Lieutenant Rodney Sparkowich stated in
his testimony at Tr. 17:
" . . . the way that I can most easily perceive it is a
sphere of influence. The inmate is only concerned with
their behavior. The line officer or the correctional
officer is concerned with their own behavior and the
inmates' behavior. The supervisor is responsible for
the inmates' behavior, the subordinates' behavior and
their own behavior, then on through levels of
management and up to the sheriff. We're all
responsible for care, custody and control, but at
varying different levels that are dramatically
divergent in their aspect.
The CO's and all three supervisory levels above the CO's are
charged with the care, custody and control of inmates. This is
their goal, and also the largest part of their day-to-day duties.
The principal function of the corporals and sergeants
-29-
_________________________________________________________________
(especially) is the care, custody and control of inmates, not
scheduling, assigning and reviewing the work of subordinates.
The corporals and sergeants function, in many ways, like "line
foremen" or "working foremen," which the Board has long found may
be a part of the same bargaining unit as their subordinates.
See, e.g., Teamsters Local No. 48 and Van Buren Light and Power
District, No. 85-UD-14 (MLRB Jan. 25, 1985) (duties of line
foreman who assigns, oversees and reviews work of employees
determined as a whole not to be so distinct and dissimilar from
those performed by supervised employees to warrant exclusion from
proposed unit); Teamsters Local No. 48 and Town of Pittsfield,
No. 81-UD-09 (MLRB Jan. 15, 1981) (sergeant position found to be
"working supervisor" where supervisory duties were limited and
undemanding and where vast majority of time was devoted to
regular patrol work). Only the staff sergeants exert the level
of supervisory authority and spend the time on supervisory duties
which approach the level of "true" supervisors under the first
prong of the test. Yet, the staff sergeants number only three in
a proposed severed supervisory unit consisting of 16 supervisory
members.
The second prong of the test contained in 966(1) requires
an evaluation whether a supervisor performs duties that are
"distinct or dissimilar" from the duties of the employees who are
supervised. As another hearing examiner has noted, this prong
was not meant to encompass any and all dissimilar duties:
[D]uties contemplated by the "distinct and dissimilar"
criterion include those in connection with hiring (or
making recommendations), transfers, layoffs and
recalls, and promotions duties that substantially
align the interest of the supervisor with the interests
of the employer and cause conflicts of interest.
State of Maine and MSEA, No. 91-UC-04, slip op. at 15 (MLRB
Apr. 17, 1991). None of the three supervisory positions have
-30-
_________________________________________________________________
significant authority in any of these areas - hiring, promoting,
transferring and the like. All authority in these areas, as well
as the authority to suspend, discharge or layoff, is held by
positions above the three supervisory positions at issue.
As to the third prong of the test outlined in 966(1), none
of the supervisors exercise judgment in adjusting grievances,
enforcing the collective bargaining agreement per se, or
establishing performance standards. All have a role in
discipline (up to written reprimand), which enforces personnel
policies and performance standards. Again, however, the actual
use of this disciplinary authority varies greatly from the lowest
rank (corporal) to the highest rank (staff sergeant) at issue
here.
In summary, an evaluation of 966(1) does not support a
conclusion that all positions in the proposed supervisory unit
are the type of "true" supervisors at risk of such conflict with
those they supervise that separation is mandated. The staff
sergeants, perhaps, have the best claim to supervisory conflict,
but they are only a small part of the unit which is proposed to
be severed.
The hearing examiner has also considered the testimony of
various witnesses about actual and hypothetical conflict that
arises between the supervisory positions and the CO's. In
testimony, the conflict concerns seemed to fall into two
categories: (1) that a supervisor would feel hesitant to
discipline a subordinate who was in that supervisor's bargaining
unit (particularly a subordinate who was a union officer or
representative) and (2) that a supervisor would give discipline
to a subordinate, the subordinate would grieve the discipline and
the supervisor could not rely on the union to represent both the
subordinate and the supervisor.
The witnesses produced few actual examples of either "type"
-31-
_________________________________________________________________
of conflict. Lt. Sparkowich testified to an incident where he
gave a subordinate discipline and then, as shop steward, was
asked to file the subordinate's grievance of his discipline.
(Tr. 37). This was a very unusual incident, however, and could
have been easily remedied by having another shop steward or the
business agent file the grievance. Staff Sergeant Breton,
although having a lengthy history of supervisory positions, could
think of no example of a specific supervisory conflict that he
has encountered (Tr. 48). He has issued perhaps five to eight
written reprimands in his years as a supervisor; none has been
grieved that he could recall (Tr. 74). Sergeant Moore, with
three years of supervisory experience, has experienced no actual
incidents of conflict (Tr. 207). Corporal Vail expressed concern
about disciplining subordinates who were union members and having
subordinates want union representatives present for even minor
types of discipline (Tr. 183, 190). However, he has only served
as a corporal for two months, after nine years as a CO. In
addition, some of his concerns would be shared by any supervisor
in a unionized work place - the supervisor must comply with the
collective bargaining agreement in administering discipline and
is always "at risk" of having the discipline questioned or
grieved.
Even theoretical concerns of supervisory conflict are
important in a unit determination matter. As the present matter
is a severance petition relating to a bargaining unit of long-
standing, however, actual examples of conflict within the unit
would better support a finding of lack of community of interest.
There were few given in testimony here, despite the extensive
supervisory experience of some of the witnesses. Considering
both the criteria contained in 966(1) and the testimony
regarding supervisory conflict, the hearing examiner finds that
the supervisory positions perform work sufficiently similar to
-32-
_________________________________________________________________
the work performed by the other bargaining unit positions
(particularly the corrections subordinates) that a community of
interest exists between these positions.
(2) Common supervision and determination of labor relations
policy. All of the positions in the bargaining unit, including
the supervisory positions at issue, are supervised by positions
within the chain of command. All of the bargaining unit
positions in corrections report ultimately to a lieutenant or to
the captain of operations and security or to the captain of
administration and support. All of the bargaining unit positions
in field services report ultimately to a lieutenant or to the
communications captain or to the criminal investigation captain.
The employees of both divisions ultimately report to the chief
deputy, and then to the sheriff. The labor relations policy is
uniform for the positions, based upon the collective bargaining
agreement and county personnel policies. This factor supports a
finding of community of interest between the positions in the
bargaining unit.
(3) Similarity in the scale and manner of determining earnings.
All of the positions in the bargaining unit are paid on an hourly
basis, on a pay grade/step system. Wages are also subject to
overtime and longevity provisions of the agreement. The
positions in the unit are all placed in a total of five pay
grades. In 2002, the pay range for a grade 2 position (for
example, a corrections officer I) is $12.41 - $15.33 per hour;
the pay range for a grade 6 position (for example, the staff
sergeant-intake supervisor) is $13.99 - $17.47 per hour. The
supervisors, particularly, are scheduled to receive larger hourly
wage increases than the other bargaining unit members in the last
two years of the current agreement which expires on December 31,
2004.
While the pay between certain positions differs to a
-33-
_________________________________________________________________
significant degree, there is similarity is scale and manner of
determining earnings, and this has been true through numerous
collective bargaining agreements for this unit. This factor
supports a finding of community of interest between the positions
in the bargaining unit.
(4) Similarity in employment benefits, hours of work and other
terms and conditions of employment. The employment benefits and
other terms and conditions of employment for positions in the
bargaining unit are the same as defined by the collective
bargaining agreement. The parties did not present evidence
regarding the hours of work. Article 16 of the agreement
indicates that there is uniformity of hours of employment for all
positions covered by the agreement, except for the dispatchers
who work a unique schedule. This factor supports a finding of
community of interest between the positions in the bargaining
unit.
(5) Similarity in the qualifications, skills and training of
employees. Because the jobs in the bargaining unit are so
diverse, the specific qualifications, skills and training
expected of the employees are equally diverse. The supervisory
positions at issue share many of the same qualifications as the
CO's. All of the supervisory positions and the CO positions
require a high school education and completion of the MCJA basic
corrections course (CO's must complete the course in the first
year of employment). The supervisors must have additional
supervisory experience commensurate with their position in the
chain of command.
It is not necessary for the nature of work and
qualifications, skills and training required of various positions
to be identical in order to be placed in the same bargaining
unit. As the executive director noted in Auburn Education
Ass'n/MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op.
-34-
_________________________________________________________________
at 11 (MLRB Feb. 27, 1991):
"Inherent in the existence of separate job
classifications is a difference in the specific work
assignment of each classification; however, such
differences do not preclude the inclusion of various
classifications in the same bargaining unit."
New bargaining units have been created after unit determination
hearing with similarly divergent jobs.[fn]5 In any event, the
issue here is not whether the diverse positions in the Sheriff
Department bargaining unit share a community of interest - the
unit has existed a long time despite its diversity of positions.
The issue here is whether the supervisory positions require such
unique qualifications, skills and training to make them a
distinct group that no longer shares a community of interest with
the bargaining unit. That is not the case here.
(6) Frequency of contact or interchange among the employees.
Again, the present bargaining unit contains diverse positions.
Some employees in the unit (in communications) work in a separate
building and have no routine communication or interchange with
employees in the jail. The supervisory positions at issue have
the most contact with the positions both above and below them in
the chain of command. These positions likely have more contact
with each other than other positions in the bargaining unit.
There is nothing about this criteria which would support a
finding of a lack of community of interest between the
supervisors and the remaining positions in the bargaining unit.
____________________
5 See, e.g., Granite City Employees Ass'n and City of Hallowell,
No. 01-UD-04 (MLRB May 23, 2001) (approving unit consisting of deputy
city clerk, code enforcement officer, janitor, deputy police chief,
police officers, highway foreman, equipment operators and laborer);
East Grand Teachers Ass'n/MTA/NEA and MSAD No. 14 Board of Directors,
No. 92-UD-01 (MLRB Oct. 1, 1991) (approving unit consisting of
teachers' aides, school secretaries, food service director, bus
drivers and custodians).
-35-
_________________________________________________________________
(7) Geographic proximity. See discussion in section (6), above.
(8) History of collective bargaining. This criterion, as
discussed earlier, is an important one in considering a petition
for severance. Past hearing examiners have examined various
aspects of the collective bargaining history in evaluating this
criterion in severance petitions. See Teamsters Local No. 48 and
County of Cumberland, No. 84-UD-11 (MLRB Mar. 16, 1984) (length
and stability of bargaining relationship; participation in union
affairs by bargaining unit members seeking severance; the
offering of special proposals for the group at bargaining table;
whether unit created by agreement); Teamsters Local No. 48 and
City of Portland, No. 81-UD-10 (MLRB July 10, 1981) (adequacy of
union representation in grievances; length and stability of
bargaining relationship; the offering of special proposals for
the group at bargaining table); Teamsters Local No. 48 and State
of Maine (Institutional Services Unit), No. 83-UD-25 (MLRB
Jan. 10, 1984), aff'd, No. 84-A-02 (Apr. 2, 1984) (same).[fn]6
____________________
6 Past hearing examiners have relied on National Labor Relations
Board precedent in finding that the history of collective bargaining
and adequacy of representation are important considerations in
severance petitions:
"The adequacy of representation by the incumbent bargaining
agent is an important factor in the NLRB's consideration of
severance petitions. See, e.g., Bendix Corp., 227 NLRB
1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-5
(1976). The NLRB holds, however, that 'a union that does
not accede to all demands made upon it by the unit seeking
to be severed cannot be accused of inadequately representing
that unit based on that fact alone.' Firestone Tire and
Rubber Co., 223 NLRB 904, 906 (1976). A number of factors
are considered, including whether members of the proposed
unit have participated in the affairs of the incumbent union
by acting as stewards and bargaining team members, and
whether any special provisions affecting the interests of
the proposed unit have been included in bargaining
agreements. Bendix Corp., 227 NLRB at 1537; Beaunit Corp.,
224 NLRB at 1504."
Teamsters Local No. 48 and State of Maine (Institutional Services
-36-
_________________________________________________________________
In the present matter, the parties have had a lengthy
history of collective bargaining, over 20 years. The county's
long-time representative testified that the parties have had good
labor relations and have had not problems negotiating agreements
despite the diverse jobs in the bargaining unit. (Tr. 101, 107-
108). The parties have needed only limited third-party
intervention in settling agreements. The most recent agreement
was reached after interest-based bargaining, with no third-party
assistance; it was ratified by an overwhelming majority amongst
union members. The union has represented supervisory employees
equally in grievance matters. The union has been particularly
successful in cases brought to arbitration in the last few years.
In addition, some of the supervisory employees have been
very active in union affairs. The chief negotiator for the union
in this most recent agreement was a corporal who was praised
extensively in the testimony for her preparation and performance
as a negotiator. Lt. Sparkowich, who has held all three
supervisory positions at issue here, was for years very active in
the union and an effective shop steward. Other supervisory
employees, such as the petitioner, have not been active at all in
the union. The supervisory employees who have been unhappy and
sought severance have done very little to bring their concerns to
the union's attention. They only first made their desires known
in 2000. The supervisory employees in the unit have never sought
any special provisions in the current or past agreements. The
supervisory employees have not, in the test used by the NLRB,
"established and maintained a separate identity" from the non-
supervisory employees in non-supervisory positions in the
bargaining unit. Mallinckrodt Chemical Works and IBEW, Local
No. 1, 162 NLRB at 397.
_______________
Unit), No. 83-UD-25, slip op. at 14 (MLRB Jan. 10, 1984), aff'd,
No. 84-A-02 (MLRB Apr. 2, 1984)
-37-
_________________________________________________________________
There was some testimony regarding the adequacy of the
union's representation, particularly on the issue of obtaining
special pay raises to distinguish the pay of the supervisors from
the corrections officers (a raise in addition to the distinction
between pay grades). Several witnesses testified that this was a
prime source of dissatisfaction amongst some supervisors in
recent years, and likely the genesis of the idea that the
supervisors should sever from the larger bargaining unit. In the
present agreement, the scale for all employees is increased by
three percent and $1.00 per hour in the first year of the
agreement; the supervisory employees are given a separate and
sizeable raise in the second and third years of the agreement.
The supervisors who testified are all well-satisfied with these
coming wage increases. The specific proposal resulting in these
wage increases was made by the employer, and was essentially
adopted through the bargaining procedure. The union proposed
across-the-board raises and a change in scale to reflect years of
service. The hearing examiner is loathe to conclude from this,
however, that the union's representation of the supervisory
employees was inadequate during the bargaining that led to this
agreement. The collective bargaining process is too complicated
to conclude from these bare facts that the employer was the only
party who made the supervisory wage increase "happen." The union
was required to represent all members of the bargaining unit in
the negotiations, and certainly did not oppose the supervisory
wage increase. Other than this, it is difficult to conclude that
one party or the other was responsible for the increase, which
was part of the over-all give and take of bargaining.
At least one witness also expressed discontent about the
fact that individuals who held the positions that became staff
sergeant positions were required to compete for their own jobs
(and were all chosen for the newly-created positions). The
-38-
_________________________________________________________________
union's Executive Board sought the competitive selection process.
Again, however, the hearing examiner cannot be certain that the
union was solely responsible for the competitive process being
used; this was part of the give and take of mid-term negotiations
over these positions. The negotiated process for filling
vacancies for these positions will remain for the benefit of
other supervisory employees, even after the incumbents to these
positions have left the positions. The union's position in the
matter did not amount to inadequacy of representation of the
supervisory employees.
In sum, a consideration of the history of bargaining here
strongly supports a conclusion that a community of interest
exists between the supervisors and the remainder of the
bargaining unit, and that severing the supervisory unit would
undermine a bargaining relationship which has been long, stable
and generally fruitful for both sides.
(9) Desires of the affected employees. The parties agreed in a
prehearing conference that affidavits signed by supervisory
employees who either supported or opposed the severance petition
could be admitted into evidence, in lieu of testimony on this
issue. MACJP offered six affidavits supporting the petition
(including one signed by petitioner Steve Breton) (MACJP Exh.
Nos. 1 - 6); AFSCME offered twelve affidavits opposing the
petition (AFSCME Exh. Nos. 1 - 12). Three supervisory employees
signed an affidavit both supporting and opposing the petition; in
each case, the opposing affidavit was signed on a later date than
the supporting affidavit. Therefore, a total of 15 supervisory
employees signed an affidavit out of approximately 16 employees
in the proposed supervisory unit. A continued hearing was
convened to take testimony from these three employees as to their
actual desires regarding this petition. All three employees were
subpoenaed by AFSCME; two employees came to the continued hearing
-39-
_________________________________________________________________
and testified. From this testimony, it could be surmised that
the individuals collecting both affidavits in support of and in
opposition to the severance petition were not above disseminating
a certain level of misinformation or hyperbole in seeking
signatures. This, in turn, cast doubt on how much reliance the
hearing examiner should place on the affidavits as a whole. On
the other hand, the two witnesses at the continued hearing made
one thing very clear - they both want the raise they will receive
under the current collective bargaining agreement and do not want
to sever from the bargaining unit if this might jeopardize the
pay raise (Tr. 181, 194). Similar reasoning might have caused
other supervisory employees to sign the affidavits in opposition
as well.
Even taking this information into account, it cannot be
denied that AFSCME was able to procure more affidavits in
opposition than MACJP was able to procure in support.
Eliminating those three affidavits signed both in opposition and
in support, MACJP procured three affidavits[fn]7 and AFSCME procured
nine affidavits. While the hearing examiner has no clear way of
knowing the thought processes that went through the minds of the
employees who signed these affidavits, it must be acknowledged
that the clear majority of those signing only one affidavit do
_______________
7 Of the three MACJP affidavits, two were signed by staff
sergeants including the petitioner (there are three staff sergeants
presently in the bargaining unit) and it was apparent that Lt.
Sparkowich was instrumental in procuring and/or processing the
affidavits. The parties are aware that it is the intention of MACJP,
if the severance were granted and if MACJP was elected bargaining
agent for the severed supervisory employees, lieutenants (currently
unrepresented) could be merged with this unit. The employer is more
or less in favor of this more-encompassing supervisory unit (See,
employer's letter of response to petition for severance, filed
November 20, 2001). The employees testifying at the continued hearing
were aware of the potential that lieutenants could become part of this
unit (Tr. 194, 205). This all suggests that the supervisors higher in
the chain of command are the ones most clearly in favor of this
severance petition.
-40-
_________________________________________________________________
not favor severing the supervisory unit. While this is only one
factor in the community of interest factors, it is certainly an
important consideration when deciding whether to break up a
functioning bargaining unit.
(10) Extent of union organization. This criterion is not
particularly valuable in evaluating a severance petition. The
Sheriff's office has two large organized bargaining units, the
present one represented by AFSCME and the patrol unit represented
by the Teamsters, in addition to numerous employees who are not
represented for purposes of collective bargaining. One small
group of unrepresented lieutenants has also petitioned the Board
for a unit determination and bargaining agent election (with the
MACJP as the prospective bargaining agent). The MACJP, who
wishes to represent the supervisory employees if they are
severed, is, as far as the hearing examiner is aware, a new
organization (although obviously connected with the Maine
Association of Police). If the supervisory unit were to be
severed, the extent of union organization would remain the same
in the Sheriff's office.
(11) The employer's organizational structure. A review of the
employer's organizational charts does not, in itself, support the
conclusion that the supervisory positions at issue form a
distinctive or separate group. Because of the diversity of the
positions in the bargaining unit, the supervisors are not all
employed in the same division. Some staff sergeants supervise no
one of rank; other staff sergeants do. Some staff sergeants
report to lieutenants; other staff sergeants report directly to
captains. In short, there is not one simple chain of command
with the supervisory employees in a clearly-defined section of
that chain. This factor supports a finding of community of
interest between the positions in the bargaining unit.
In conclusion, a review of the community of interest factors
-41-
_________________________________________________________________
do not support a finding that the supervisory positions in the
Sheriff Department bargaining unit no longer share a community of
interest with the remaining positions in the unit. While the
supervisory nature of their jobs may place them in some conflict
with the employees that they supervise, the actual conflicts
within the unit have been limited and few. In addition, the
extent of actual supervisory authority as described in
26 M.R.S.A. 966(1) varies a great deal within the supervisory
unit proposed to be severed, from the corporal to the staff
sergeant. This is one of the most significant differences
between this matter and Teamsters Local No. 48 and County of
Cumberland, where the patrol positions were severed from this
same bargaining unit - the patrol positions were much more
distinct and dissimilar from the remaining positions in the unit
than the supervisory positions are from the unit as it is now
configured.
If this were an initial unit determination petition, the
supervisors may have been placed in a separate bargaining unit.
This is not an initial unit determination petition, however, but
a petition to sever these positions out of a bargaining unit that
has had a long and generally fruitful collective bargaining
history with the employer. The supervisors have not held
themselves out or acted as an entity separate from the other
positions in the bargaining unit. AFSCME has adequately
represented all positions in the unit, including the supervisors.
The issue of most concern to the supervisors - a separate and
higher pay scale from the CO's - is a reality under the present
collective bargaining agreement. Considering all of these
factors, the hearing officer cannot find that these positions
should be severed from the bargaining unit.
-42-
_________________________________________________________________
CONCLUSION
The petition for unit determination filed on October 31,
2001, by Steven Breton on behalf of the Corporals and Sergeants,
Cumberland County Sheriff's Office, seeking the severance of a
unit of corporals and sergeants from the Sheriff's Department
bargaining unit, is denied. These positions will remain as part
of the presently-configured bargaining unit. The part of the
petition seeking a decertification/bargaining agent election for
this unit of corporals and sergeants will not be acted upon
further by the Board.
Dated at Augusta, Maine, this 31st day of May, 2002.
MAINE LABOR RELATIONS BOARD
/s/_________________________
Dyan M. Dyttmer
Hearing Examiner
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. 968(4), to appeal this report to the Maine Labor
Relations Board. To initiate such an appeal, the party seeking
appellate review must file a notice of appeal with the Board
within fifteen (15) days of the date of issuance of this report.
See Chapter 10 and Chap. 11 30 of the Board Rules.
-43-
_________________________________________________________________
SHERIFF
CHIEF DEPUTY
[Fiscal office: Receptionist clerk; Administrative secretary]
FIELD SERVICES DIVISION
Captain - communications Captain - field services Captain - criminal
(Patrol) investigation
Communications sergeant Lieutenant
Dispatchers Civil deputies
Crime analysts
Complaint officers
CORRECTIONS DIVISION
Jail Administrator
Captain - operations and security Captain - administration and support
Shift lieutenants Intake supervisor (Staff sergeant)
Sergeants Intake sergeants
Corporals Intake officers
Corrections officers Property officer
Records clerk
Lobby officers
Receptionist Education coordinator
Education technician
Transport supervisor (Staff sergeant)
Transport officers Lieutenant - community corrections
Vocational teacher
Recreation officer Education technicians
Trustee coordinator
Work release officers
Community service officers
Electronic monitoring officer
Food service supervisor (Staff sergeant)
Cooks
[Note: Bargaining unit positions are in italics]
- Appendix A -