York County and Teamsters Union Local 340, No. 02-UDA-01, affirmed, No. AP-02-64 STATE OF MAINE MAINE LABOR RELATIONS BOARD 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 overturned. [-1-] __________________________________________________________________________ JURISDICTION 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. DISCUSSION 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: -2- __________________________________________________________________________ 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 organizations. 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 -3- __________________________________________________________________________ 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 employees. 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 -4- __________________________________________________________________________ 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. -5- __________________________________________________________________________ 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. -6- __________________________________________________________________________ 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. . . . -7- __________________________________________________________________________ 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). -8- __________________________________________________________________________ ORDER 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 -9- __________________________________________________________________________