York County and Teamsters Union Local 340, No. 02-UDA-01, 
affirmed, No. AP-02-64

                                      Case No. 02-UDA-01
                                      Issued:  September 27, 2002

York County,                     )
                    Appellant,   )      DECISION AND ORDER ON
          and                    )        UNIT DETERMINATION
                                 )              APPEAL
Teamster Union Local 340,        )
                    Appellee.    )

     This unit determination matter began when Teamsters Union
Local 340 ("Union") filed a unit determination and election
petition with the Maine Labor Relations Board ("Board") for a
bargaining unit composed of the Captains in the York County
Sheriff's Department ("Employer").  The Employer contends that
the Teamsters Union should not be allowed to represent this unit
because the Teamsters already represents bargaining units whose
employees are supervised by the Captains.  
     In order to expedite the Board's consideration of this
matter, the parties signed a consent order which was issued by
the executive director on June 4, 2002.  In that consent order
the parties agreed that a unit composed of Captains is an
appropriate unit under 966(2) of the Municipal Employees Labor
Relations Law ("MPELRL" or "Act").  26 M.R.S.A. 961 et seq.  
The parties also agreed that, given the Board's decision in
Kittery and Teamsters Union Local 48, No. 83-A-02 (Feb. 7, 1983),
the hearing examiner would hold that the statute permits a
bargaining agent to represent both the rank-and-file and the
supervisory employees of the same public employer.  The Employer
appeals to the Board arguing that the Kittery decision should be



     York County is a public employer and the Teamsters Local
Union 340 is a bargaining agent within the meaning of 962(7)
and 962(2) of the Act, respectively.  The jurisdiction of the
Maine Labor Relations Board to hear this appeal and to render a
decision herein lies in 968(4) of the Act.


     As agreed to by the parties, the sole issue in this appeal
is whether Teamsters Union Local 340 can be the bargaining agent
for the Captains bargaining unit at the York County Sheriff's
Department in light of the fact that the Teamsters currently
represent the Corrections Officers, Supervisors, Communications,
Court Security, and Transportation bargaining units, all
consisting of employees supervised by the Captains.    
      The Board was presented with the very same question in
Kittery and Teamsters Local 48, where the employer objected to
the Teamsters representing a unit of sergeants when they also
represented a unit of employees subordinate to the sergeants. 
No. 83-A-02 (Feb. 7, 1983), affirming No. 83-UD-04.  This Board,
hearing many of the same arguments heard in the present case,
concluded that the statute cannot be read to restrict the right
of supervisory employees to select a bargaining agent simply
because that agent already represents a unit of rank-and-file
employees.  The Board's reasoning in the Kittery decision was
sound at the time, remains so, and will not be overturned.
     The Act is unequivocal in granting employees the right to
select a labor organization to represent them in collective
bargaining.  The two provisions illustrating this employee right
to self-determination that were noted in the Kittery decision
have not diminished in their import:


     Section 961. Purpose
          It is declared to be the public policy of this
     State and it is the purpose of this chapter to promote
     the improvement of the relationship between public
     employers and their employees by providing a uniform
     basis for recognizing the right of public employees to
     join labor organizations of their own choosing and to
     be represented by such organizations in collective
     bargaining for terms and conditions of employment.

     Section 963.  Right of public employees to join labor
          No one shall directly or indirectly interfere
     with, intimidate, restrain, coerce or discriminate
     against public employees or a group of public employees
     in the free exercise of their rights, hereby given,
     voluntarily to join, form and participate in the
     activities of organizations of their own choosing for
     the purposes of representation and collective
     bargaining, or in the free exercise of any other right
     under this chapter.

     As the Kittery Board concluded, the "unfettered right to opt
to be represented by any bargaining agent is apparent from
[these] two statutes".  No. 83-A-02, at p. 3.  The only real
limitation on the right of representation is not who may
represent a bargaining unit but what standards the Board must
apply in deciding whether a proposed unit is an appropriate
bargaining unit.  Section 966, subsections 1 and 2 of the Act
provide the framework for the initial determination of bargaining
units by the Board: 
     966. Bargaining unit; how determined

           1. Bargaining unit standards.  In the event of a
     dispute between the public employer and an employee or
     employees as to the appropriateness of a unit for
     purposes of collective  bargaining or between the
     public employer and an employee or employees as to
     whether a supervisory or other position is included in
     the bargaining unit, the executive director or his
     designee shall make the determination, except that
     anyone excepted from the definition of public employee
     under section 962 may not be included in a bargaining
     unit.  The executive director or his designee 


     conducting unit determination proceedings shall have
     the power to administer oaths and to require by
     subpoena the attendance and testimony of witnesses, the
     production of books, records and other evidence
     relative or pertinent to the issues represented to
     them.  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,
     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.  Nothing in this chapter is
     intended to require the exclusion of principals,
     assistant principals, other supervisory employees from
     school system bargaining units which include teachers
     and nurses in supervisory positions.
          2. Bargaining unit compatibility. The executive
     director of the board or his designee shall decide in
     each case whether, in order to insure to employees the
     fullest freedom in exercising the rights guaranteed by
     this chapter and in order to insure a clear and
     identifiable community of interest among employees
     concerned, the unit appropriate for purposes of
     collective bargaining shall be the public employer unit
     or any subdivision thereof.  No unit shall include both
     professional and  nonprofessional employees unless a
     majority of such professional employees vote for
     inclusion in such unit, except that teachers may be
     included in a unit consisting of other certificated
     Section 966(1) does not mandate separate units for supervis-
ory employees nor does it contain any legislative "proscription"
on the placement of supervisors in a rank-and-file unit, as the
Employer suggests.  On the contrary, the Board has previously
stated that "966(1) is permissive in nature":  the hearing exam-
iner may either include supervisors in the proposed unit or place 


them in a separate bargaining unit.  Town of Sabattus and
Teamsters Local Union No. 48, No. 82-A-01 (Sept. 17, 1981), p. 3. 
Section 966(1) provides guidance, but it is up to the hearing
officer to decide this issue:

     . . .  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. . . .
     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
     purpose of creating  separate supervisory employee
     bargaining units is to minimize potential conflicts of
     interest within bargaining units, between supervisors
     and their subordinate employees, as well as to lessen
     conflicts of loyalty for supervisors between duty to
     their employer and allegiance to fellow unit employees.
     (citations omitted)

Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professional, No. 85-A-01, at p. 8 (Feb. 6, 1985).  
     Separate supervisory units are not required by the Act.[fn]1  We 
therefore agree with the Kittery Board's conclusion that the same 
union may represent a unit of supervisors while also representing 
a unit of subordinate employees:

     . . . [The Legislature] expressly delegated to the
     executive director, applying the criteria set forth in
     Section 966(1), the authority to determine whether said
     supervisors should be included in the same bargaining
     unit as the employees whom they supervise. . . .  Since
     the legislature has expressly authorized the inclusion
     of supervisory and non-supervisory employees into the
     same bargaining unit and, hence, to be represented by
     the same bargaining agent, we must conclude that the
     same bargaining agent may represent a public employer's
     supervisory and rank-and-file employees in separate 


     1 The New Hampshire cases cited by the Employer are distinguish-
able because the New Hampshire statute expressly prohibits including
supervisors in the same bargaining unit as the employees supervised.
N.H. RSA 273-A: 8 II.


     bargaining units.  We hold that this conclusion is the
     proper interpretation of the Act.
Kittery, 83-A-02, p. 4.  We must reject the employer's statutory
construction argument that a supervisory unit may not be repre-
sented by the same bargaining agent that represents the rank-and-
file employees because the argument is based on the incorrect
premise that the statute prohibits including supervisors in a
unit with subordinate employees.[fn]2 
     Section 967 of the Act, titled "Determination of the
bargaining agent," is further indication that the employees'
right to be represented by the bargaining agent of their own
choosing is not limited.  After specifying the procedures for
Board-conducted elections, section 967(2) says: 

     When an organization receives the majority of votes of
     those voting, the executive director of the board shall
     certify it as the bargaining agent.  The bargaining
     agent certified as representing a bargaining unit shall
     be recognized by the public employer as the sole and
     exclusive bargaining agent for all of the employees in
     the bargaining unit unless and until a decertification
     election by secret ballot shall be held and the
     bargaining agent declared by the executive director of
     the board as not representing a majority of the unit. 
There is no qualification to the requirement that the executive
director certify the organization receiving the majority of the
votes cast.  Similarly, there is no qualification to the
requirement that the public employer recognize the certified 

     2 We also note that had the Legislature wanted to require
different bargaining agents, it would have been easy to do so. 
Section 9(b)(3) of the National Labor Relations Act (NLRA) prohibits
the National Labor Relations Board from including security guards in a
bargaining unit that includes any non-guard employees.  29 U.S.C. 
159(b)(3).  Not only that, a unit of guards may not be represented
by a labor organization "if such organization admits to membership, or
is affiliated directly or indirectly with an organization which admits
to membership, employees other than guards."  Id.  The Maine
Legislature could have easily patterned a similar requirement for
supervisory units--the Legislature was cognizant of the provisions of
the NLRA when it enacted the MPELRL and many sections of the Act
parallel the NLRA.  See, Kittery, 83-A-02, p. 3.


bargaining agent as the exclusive representative of the unit.
Simply stated, the board has no statutory authority to disqualify
a union from representing the employees who have freely elected
that union as their bargaining agent.
     As a final point supporting our conclusion, the section of
the Act governing unit mergers reflects a recognition that the
same union may represent a unit of supervisors at the same time
it represents a unit of the subordinate employees.  The merger
provision, found in 966(4), creates a special process for
holding an election on merging one or more bargaining units at a
single employer when those units are represented by the same
bargaining agent.[fn]3  There are some restrictions on when this
can occur.  Paragraph E of the subsection on mergers states:

     E.  A bargaining unit composed of a majority of
     supervisors may not merge under this subsection with
     any other bargaining unit.  
If 966(1) prohibited a bargaining unit of supervisors from being
represented by the same bargaining agent that represents the rank
and file employees, then subsection 4, paragraph E would be
totally unnecessary.  We think that paragraph E clearly indicates
that the Legislature recognized that there could be occasions
where the same bargaining agent represents a supervisory unit and
a unit of subordinate employees.
     As a final note, we think the Employer's concern that
conflict-of-interest problems "will quickly become the general
rule" ignores the fact that the Employer exercises some control
over the situation.  It is important to remember that the
bargaining agent's status (and the Employer's corresponding 

     3 4. Unit merger; same bargaining agent.  If there is the same
certified or currently recognized bargaining representative of public
employees in multiple bargaining units with the same public employer,
the public employer or certified or recognized bargaining representa-
tive may file a petition with the executive director to merge those
bargaining units. . . .


obligations) derives from its certification as the bargaining
agent for the specific bargaining unit.  The fact that the agent
may also represent another unit does not alter that status.  The
Employer is free to insist on bargaining with the Captains unit
separately from the other units, as bargaining with all of the
units at the same table is not required.  Furthermore, if the
Captains fail to fulfill their supervisory duties because of
"conflicting loyalties" or if they disclose confidential infor-
mation improperly, the Employer may address these issues as
performance problems.[fn]4  See, Maine School Administrative
District No. 14 and East Grand Teachers Association, No. 83-A-09
(Aug. 24, 1983), p. 10 (When assigning confidential collective
bargaining duties, employer may caution employee that disclosure
of the confidential information to the union may result in
discipline).  Thus, if a problem does arise, the Employer has the
means to address it.
     From the employees' perspective, if the bargaining agent is
showing a preference for the interests of one unit over another,
the employees may petition for an election to certify a different
agent.  In addition, the union selected as the exclusive repre-
sentative of a unit has a duty to fairly represent all of the
members of that bargaining unit, without respect to the union's
representation of other bargaining units.  Thus, remedies are
available to the employees as well if actual conflicts of
interest interfere with their collective bargaining rights.

     4 Subject to the prohibitions in 964(1).



     On the basis of the foregoing discussion and pursuant to the
powers granted to the Maine Labor Relations Board by the
provisions of 26 M.R.S.A. 968(4), it is ORDERED:

     that the appeal of York County, filed with respect to
     the Consent Order in Case No. 02-UD-06, is denied and
     the report is affirmed as set forth above.

Dated at Augusta, Maine, this 27th day of September, 2002.

The parties are hereby advised     MAINE LABOR RELATIONS BOARD
of their right, pursuant to 
26 M.R.S.A.  968(4) (Supp.
2001) to seek review of this       /s/________________________
Decision and Order on Unit         Peter T. Dawson
Determination Appeal by the        Chair
Superior Court.  To initiate
such a review an appealing
party must file a complaint        /s/________________________
with the Superior Court within     Karl Dornish, Jr.
fifteen (15) days of the date      Employer Representative
of issuance of this decision
and order, and otherwise
comply with the requirements       /s/________________________
of Rule 80C of the Maine Rules     Carol B. Gilmore
of Civil Procedure.                Employee Representative