STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 03-UD-10 Issued: September 26, 2003 __________________________________ ) ERIC BELL, ) ) Petitioner, ) ) and ) ) RICHMOND EMPLOYEES ASSOCIATION, ) UNIT DETERMINATION ) REPORT Certified Bargaining Agent, ) ) and ) ) TOWN OF RICHMOND, ) ) Employer. ) __________________________________) PROCEDURAL HISTORY On April 29, 2003, Eric Bell ("Petitioner") filed a Petition for Decertification/Bargaining Agent Election with the Maine Labor Relations Board ("Board"). The petition was accompanied by showing of interest cards signed by police officers employed by the Town of Richmond. The showing of interest cards indicated that the police officers wished to be severed from the Richmond municipal employee bargaining unit, and that they wished to be represented by the Richmond Police Association rather than the Richmond Employee Association ("REA" or "Association"). The petition indicated that the proposed unit would consist of full- time police officers working for the Town of Richmond. By letter dated April 30, 2003, the hearing examiner advised the Petitioner of various insufficiencies in the petition as submitted. Most of these insufficiencies related to the fact that the Petitioner did not make clear that he was seeking to sever the police officers from the existing bargaining unit, by [-1-] _________________________________________________________________ seeking a unit determination ("severance"), as well as a decertification/bargaining agent election. The Petitioner was given 15 days from the service of the notice of insufficiencies to file an amended petition. On May 7, 2003, the Petitioner filed an Amended Petition for Unit Determination and Decertification/Bargaining Agent Election with the Board. On May 8, 2003, copies of the amended petition were served upon the Town of Richmond and upon the REA, by facsimile transmission and by regular mail. The parties were advised that a response to the petition was due on or before May 23, 2003. On May 19, 2003, the Board received a response from Richard Mersereau, representative of the REA, citing various objections to the amended petition. On May 21, 2003, the Board received a response from the Town of Richmond, also citing various objections to the amended petition. On June 5, 2003, the hearing examiner, acting as designee of the Executive Director, issued an Interim Report Regarding Objections to the Sufficiency of the Amended Petition, which dismissed some of the objections of the respondents and preserved other objections to be addressed in the present Unit Determination Report. This Interim Report is incorporated herein by reference. A hearing notice was issued on June 12, 2003, and was posted for the benefit of affected employees. The hearing examiner conducted a prehearing conference by telephone in this matter on July 9, 2003. The Prehearing Conference Memorandum and Order is incorporated herein by reference. The hearing was conducted on July 16, 2003. Petitioner Eric Bell appeared on behalf of himself. Richard D. Mersereau, labor consultant, appeared on behalf of the Association. Town Manager David Peppard appeared on behalf of the Town of Richmond. The parties were afforded full opportunity to examine and cross- examine witnesses, and to present evidence. The following -2- _________________________________________________________________ witnesses were presented at the hearing: for the Petitioner, Richard Alexander, Richmond police officer and Association vice president, and Jeremy Petty, Richmond police officer; for the Association, Laurie Bouchard, assistant finance director and Association secretary/treasurer, Tom Webster, public works employee and Association president, and Richard D. Mersereau, Association labor representative. The Town did not present witnesses. The Association presented written closing argument at the hearing, and the Petitioner and the Town presented oral closing argument on the record. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination lies in 26 M.R.S.A. 966. EXHIBITS The following Association exhibits were admitted to the record without objection of the parties: Association Exhibits 1 Richmond Contract (95-97) 2 Richmond Contract (99-01) 3 Richmond Contract (2001-03) 4 Richmond Contract (2003-05) 5 REA Minutes (2-28-94) 6 REA Minutes (4-18-95) 7 REA Minutes (11-20-96) 8 REA Minutes (1-24-97) 9 REA Meeting Notice (8-9-00) 10 REA Minutes (8-17-00) 11 REA Minutes (9-14-00) 12 REA Minutes (3-13-01) 13 REA Minutes (4-23-01) 14 REA Meeting Notice (12-6-01) 15 REA Minutes (12-6-01) 16 REA Meeting Notice (9-5-02) 17 REA Meeting Notice (8-1-02) 18 REA Minutes (8-1-02) [unsigned] -3- _________________________________________________________________ 19 REA Minutes (8-1-02) [signed] 20 REA Minutes (9-5-02) 21 Officer Peppard Memo (9-5-02) 22 REA Minutes (10-21-02) 23 Initial REA Proposal to Town (10-22-02) 24 Proposal #2 (1-10-03) 25 Negotiation History (Nov.-March) 26 REA Meeting Notice (3-13-03) 27 Richmond wage agreement comparison, 1995 and 2005 28 Resume, Richard D. Mersereau STIPULATIONS The parties agreed to the following factual stipulations as part of the prehearing conference: 1. The Richmond Employees Association ("Association") is a public employee organization that is the certified bargaining agent for all full-time, permanent employees of the Town of Richmond, within the meaning of 26 M.R.S.A. 962(2). 2. The Town of Richmond is a public employer, within the meaning of 26 M.R.S.A. 962(7). 3. The Richmond municipal employee bargaining unit consists of all full-time, permanent employees of the police, public works and administration departments. The following positions are in the bargaining unit: town clerk, bookkeeper/deputy treasurer/ deputy tax collector (vacant), police sergeant (vacant), police officer (3), highway foreman, assistant highway foreman, highway equipment operator (2), community development director (vacant), grants administration department RINOP secretary (vacant), administrative assistant/deputy tax collector, and deputy finance and human resource director/office manager. 4. The petition filed by Eric Bell on May 2, 2003, seeks to create a new bargaining unit consisting of the full- -4- _________________________________________________________________ time police officers currently in the municipal bargaining unit and to sever this police unit from the municipal bargaining unit. 5. The positions to be included in the proposed bargaining unit are all full-time police officers. 6. There is no contract bar to this petition. 7. The attorney examiner has jurisdiction, as designee of the Executive Director, to hear and decide this unit determination matter pursuant to 26 M.R.S.A. 966(1) and 966(2). 8. During the entire history of the municipal bargaining unit, each employee department (police, public works, and administration) has been and is represented on the executive, negotiating and grievance committees of the Association. 9. The Association does not agree to the proposed severance and reduction in size of the municipal bargaining unit being proposed in the petition. 10. The positions in the proposed bargaining unit (full- time police officers) share a community of interest, as defined by 26 M.R.S.A. 966(2) and Board Rule, Chap. 11, 22(3). FINDINGS OF FACT 1. The Richmond municipal employees bargaining unit was created in 1994 following a Unit Determination hearing. On June 14, 1994, the Richmond Employees Association ("Association") was certified as the exclusive bargaining agent, following election. 2. The Association and the Town of Richmond ("Town") negotiated and ratified the first collective bargaining agreement in 1995, which was effective from July 1, 1995, to June 30, 1997. The Association and the Town have negotiated and -5- _________________________________________________________________ ratified four collective bargaining agreements since the initial contract. 3. The most recent collective bargaining agreement was ratified on March 27, 2003, to be effective July 1, 2003, to June 30, 2005. 4. The Association and the Town used the services of a mediator in negotiating the first two collective bargaining agreements. The Association and the Town have negotiated the three most recent collective bargaining agreements without the use of mediation. The Association and the Town have not used either fact-finding or interest arbitration to negotiate any of the five agreements. 5. The labor-management relationship between the Association and the Town has generally been good. Bargaining unit members are all empowered under the collective bargaining agreement to file their own first-step grievances, but only a few grievances have been filed over the years. Only one grievance (filed on behalf of a public works employee) has been taken to arbitration. The Association prevailed in this arbitration. 6. The police officers have rarely filed grievances. About one year ago, one police officer filed a grievance because the Police Chief would not grant him more than the one day off allowed by the collective bargaining agreement after his sister-in-law died, because the officer could not secure his own replacement. The police officer and the Association president met with the Police Chief and reached an agreement about how such matters would be dealt with in the future, which satisfied the concerns of the police officer. This police officer does not believe that the Police Chief has fully complied with the agreement, but he has chosen not to pursue the matter further. Another police officer more recently filed a grievance about being "shorted" his usual -6- _________________________________________________________________ scheduled work hours one week. The town manager saw to it that the police officer was paid for the work hours he did not get, and this resolved the grievance. 7. The Association representative (Richard Mersereau) has been the unit's representative since its inception. He has significant experience in the field of labor relations, including the representation of police officers in this and other units (Association Exh. No. 28). 8. There are currently ten persons employed in bargaining unit positions. All ten employees are members of the Association and pay $10 per month Association dues. 9. The Association conducts a meeting only once per year, in years when no collective bargaining agreement will be negotiated. At this yearly meeting, three Association officers (president, vice president, and secretary/ treasurer) are elected, and other business is conducted. The three Association officers make up the executive committee. More Association meetings are held when necessary in order to formulate contract proposals, and to review and ratify a collective bargaining agreement. 10. The policy of the Association is to elect one Association officer from each of the Town departments represented in the bargaining unit (police, public works, and administration). Currently, for instance, the Association president is a public works employee, the Association vice president is a police officer, and the Association secretary/treasurer is the town finance officer. In only one year did the Association deviate from this policy, when no administration employee wished to serve as an Association officer. In that year, public works employees served as both president and secretary/treasurer. 11. The current Association vice president is a police officer who has worked for the town since 1999. He has been the -7- _________________________________________________________________ Association vice president for most of his period of employment. He has been on the negotiating team for the last two collective bargaining agreements. 12. The three Association officers make up the negotiating team. Other bargaining unit members may attend negotiating sessions, but may not speak. Bargaining unit members other than the three members of the negotiating team have not generally attended negotiating sessions. Members of the negotiating team informally advise their fellow employees about the on-going negotiations. An Association meeting is then called to describe the proposed agreement and to vote on the agreement. 13. Over the years, the Association has negotiated provisions in the collective bargaining agreements for the exclusive benefit of the police officers. These provisions have included minimum compensation for court time and a shift differential. Both the police officers and the public works employees wear uniforms. Under past collective bargaining agreements, the Town has been required to provide the police officers with uniforms and all required duty gear. The 2001 - 2003 agreement contained, for the first time, a specific list of the required duty gear and further provided that damaged, destroyed, lost or worn out items would be replaced with the approval of the Police Chief. Other provisions have been negotiated (such as those relating to "comp" time and education/training adjustments) that, while not for the exclusive benefit of police officers, have particularly benefitted the police officers. 14. In the 2001 - 2003 collective bargaining agreement, a significant increase in wages was negotiated for the police officers. This was done to bring the Town wages up to police officer wages in comparable towns, and with the hope of attracting and retaining police officers. The following -8- _________________________________________________________________ wage increases were negotiated (comparing the last year of the 1999 - 2001 agreement with the first year of the 2001 - 2003 agreement): entry, $10.69 to $11.76; after first year, $10.92 to $12.47; and after second year, $11.17 to $12.98. 15. Over the course of the five collective bargaining agreements, the police officers have realized the largest percentage increase in their wages, when compared to the wage increases of the other positions in the bargaining unit (Association Exh. No. 27). 16. In August and September, 2002, the Association held meetings for the members in order to formulate contract proposals for the negotiations for the 2003 - 2005 collective bargaining agreement. On September 5, 2002, one police officer (no longer employed by the Town) formulated and distributed to the other Association employees a list of 14 items of concern to the police officers (Association Exh. No. 21). Some of these items were of general economic concern to all bargaining unit members (such as adding an IRA option with an employer match to employee contribution). Many of the items were only of concern to the police officers (such as increasing the shift differential, and having the Town pay for required items when the officers attended Maine Criminal Justice Academy training). 17. The Association presented 12 of the 14 police items as part of their initial contract proposal. The only items not proposed were Item 9, providing internet access to the police officers, and Item 13, increasing maximum accumulated comp time to 100 hours (from 40 hours). 18. The Association was successful or partially successful in obtaining nine of the 14 police items in the final 2003 - 2005 collective bargaining agreement, as follows: Item 1 - 50 cents an hour upon completion of the Basic Law Enforcement Training Program or to be added to the starting pay of an already certified applicant who is -9- _________________________________________________________________ hired. The agreement gave the officers 50 cents per hour upon completion of the program, as an advance on the next step or contractual raise. Item 3 - All required items for the Maine Criminal Justice Academy ("MCJA") (sweat pants, shorts, etc.) paid for by the Town. The agreement gave the police officers attending the MCJA a reimbursement for items up to $150 upon presentation of receipt. Item 5 - Special detail pay (dances, traffic, etc.) to be paid at $25 to $30 per hour. The agreement gave the police officers $30 per hour for special detail work. Item 6 - Special detail work to be provided on seniority basis. The agreement provided that the full- time police officers were to be offered special assignments on a rotating basis. Item 8 - Paid membership in a local gym. The agreement provided that employees would be reimbursed up to $125 per year for membership in a registered fitness program. Item 10 - Raising shift differential to 25 - 50 cents per hour for second shift and to 50 cents - one dollar per hour for third shift. The agreement provided for an increase to 30 cents per hour for second shift and 45 cents per hour for third shift. Item 11 - Adding an employer match contribution of 80 percent to any employee contribution to retirement IRA. The agreement provided for three percent employer match, in addition to the $500 per year employer contribution already provided in previous agreement. Item 12 - Full health insurance for employee and employee's family. The agreement added language to the existing cafeteria plan that gave employees who opted for family coverage 50 to 75 percent of the cost of that family coverage. Item 14 - Pay scale increases for police officers as follows: entry from $11.76 to $12.00; after one year from $12.27 to $12.96; after two years from $13.24 to $13.92. The agreement provided for the following pay scale increases: entry to $12.16 for 2003 and 2004; after one year to $13.12 (2003) and $13.52 (2004); after two years to $13.64 (2003) and $14.04 (2004). -10- _________________________________________________________________ 19. The Association was not successful in obtaining three of the 14 police items in the final 2003 - 2005 collective bargaining agreement, as follows: Item 2 -While attending the MCJA, five hours of overtime or comp time due to the long hours at the academy. Item 4 - On call pay - when officer on call, that officer to be paid half of his/her hourly pay for every hour on call. Item 7 - Open shifts to be provided on seniority basis. 20. One of the police officers (still currently employed by the Town) was particularly concerned that the officers had to procure their own replacements when they could not work a shift. This was sometimes difficult to do because of the limited availability of the reserve officers. However, this concern was not contained in the written list of 14 items submitted by the other police officer to the Association for inclusion in the contract proposals. After negotiations had begun, the police officer who had this concern raised it with the Association representative. The representative advised the police officer that this concern could be addressed through the grievance process, and that it was too late to add it to the contract proposals. 21. One of the recently-hired police officers was concerned that he might damage personal items (such as eyeglasses) on the job, such as when arresting someone, and he would not be reimbursed by the Town for this damage. However, he was hired too late in the negotiation process for this to be raised at the table. 22. The 2003 - 2005 collective bargaining agreement was ratified by a majority of the Association membership at a March 13, 2003, meeting. None of the three police officers then employed voted to ratify the agreement. -11- _________________________________________________________________ 23. In the last few years, there has been considerable turnover in the position of full-time police officer in the Town. There are currently three police officers employed by the Town. One officer was hired in 1999. The other two officers (one of whom filed the present Petition) were hired on November 7, 2002, and December 19, 2002, respectively. 24. The three police officers and the Police Chief (who works as an active police officer) work in three shifts per day to provide 24-hour police coverage for the Town. The shifts are rotated between the police officers on a monthly basis. There are four reserve police officers who are not regularly scheduled, and who work as replacements only. 25. Some of the police officers are concerned that if they should ever be required to arrest or charge a fellow bargaining unit member, this would cause conflict within the unit. 26. To be hired by the Town as a police officer, an applicant must have a high school degree and have completed the 100- hour course at the MCJA. After one year of employment, a police officer must then complete an 18-week basic law enforcement course at the Academy to continue employment. 27. The police office is currently located in the same building as the Town office, which is across the street from the public works department building. There is considerable interchange among all the members of the bargaining unit. 28. The police officers first advised the REA representative that they wanted to sever from the bargaining unit during the last contract negotiations. The police officers believed that they could represent themselves, and their unique interests, better as a separate unit. The REA would not agree to the severance. -12- _________________________________________________________________ DISCUSSION The issue presented by this case is whether the full-time police officer positions in the Town of Richmond, now a part of the Richmond municipal employees bargaining unit, should be allowed to sever from that unit and become a separate bargaining unit. The Petitioner seeks to elect a new bargaining agent, the Richmond Police Association, if this severance petition[fn]1 is granted. The Petitioner argues that the severance petition should be granted because the police officers do not share a community of interest with the larger existing bargaining unit, and that the unique needs of police officers are not always addressed in the collective bargaining agreement because of the number of police officers in the bargaining unit (currently, there are three police officers in a unit consisting of ten employees). Both the Association and the Town have objected to the severance, citing a history of good labor-management relations between the Town and the presently-configured municipal unit, and a desire that an already-small bargaining unit not be fractured into two smaller units. 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 Union 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, IAFF, No. 80-A-03 (MLRB July 18, 1980). The Petitioner here has presented a sufficient petition accompanied by an adequate showing of interest from Richmond police officers who wish to sever from the ____________________ 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 this report. -13- _________________________________________________________________ municipal unit. As a unit determination, this matter turns upon an evaluation of the presence or absence of a "clear and identifi- able 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 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 -14- _________________________________________________________________ the community of interest factors as a unit determination petition seeking creation of a new unit, the issues in a severance petition 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 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 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 MLRB decisions have deemed the history of collective bargaining to be a "very important" and, sometimes, the decisive element in severance petitions. Cf. Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, 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"); Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, 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 -15- _________________________________________________________________ also finds the history of collective bargaining to be a key element in determining severance petitions. See 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 Cumberland County Sheriff's Office bargaining unit that contained both patrol officers and corrections officers. Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra. 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 Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 15 (MLRB July 10, 1981). The NLRB also 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). In the present matter, the parties have stipulated that the police officers, when viewed as a separate proposed bargaining unit, share a community of interest. This is a logical conclusion considering most of the community of interest factors -16- _________________________________________________________________ such as similarity in the work performed, common supervision, similarity of qualifications and skills, and frequency of contact. The question here remains, however, whether the police officers should be severed from the larger municipal unit. This decision turns on a finding whether the police officers share a community of interest with the remaining positions in the larger existing bargaining unit. Below, the hearing examiner will more fully discuss each community of interest factor as it relates to this ultimate question. (1) Similarity in kind of work performed. This factor (along with the "history of collective bargaining" factor) is key to the present determination, judging by the evidence and arguments presented by the parties. The municipal unit here is a typical "wall-to-wall" unit, meaning that positions in the unit perform very different duties on a day-to-day basis. The duties of a police officer are clearly different from the duties performed by, for example, the equipment operator or the town clerk. The Board has found that the unique duties of law enforcement personnel can support their inclusion in a separate bargaining unit, particularly when units are initially created.[fn]2 In Teamsters Local Union No. 48 and Cumberland County and AFSCME, Council No. 74, supra, the differing duties of patrol officers and jail custodial officers was an important factor in the decision to sever the patrol positions into a separate bargaining ____________________ 2 For instance, when the bargaining units for state employees were initially created, a separate bargaining unit was created for state troopers. Council No. 74, AFSCME and MSEA, et al., No. 75-UD-04 (Sept. 22, 1976), aff'd, No. 77-A-02 (MLRB Jan. 17, 1977). One rationale cited for creating the separate bargaining unit was the desire to avoid conflicting loyalties during periods of labor unrest or acts violative of the state labor relations laws. Council No. 74, AFSCME and MSEA, et al., No. 75-UD-04, slip op. at 13. This is the same rationale used by the National Labor Relations Board in creating separate bargaining units for those employees who provide plant security and protection in the private sector. While this is a legitimate concern, it is a decidedly theoretical concern considering the history of public sector labor relations in this state. -17- _________________________________________________________________ unit. Cumberland County, No. 84-UD-11, slip op. at 11-12, 16-17. The Board has recognized, however, that "similar work" does not mean "identical work." As the executive director has noted in a previous decision, Auburn Education Ass'n/MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op. at 11 (MLRB Feb. 27, 1991), aff'd, 91-UDA-01 (MLRB May 8, 1991): In comparing the nature of the work being performed by the various classifications under consideration, the essence or basic type of the functions being performed is far more important than the details of each position's work responsibilities. 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. For this reason, bargaining units with sometimes very divergent positions are approved by the Board because the essence of the positions or the goal of the positions share a commonality--such as supporting the educational process, serving to make City operations run smoothly for its citizens, or working together to respond to emergency situations. See, e.g., Granite City Employees Ass'n and City of Hallowell, No. 01-UD-04 (MLRB May 23, 2001)(approving unit which included deputy city clerk, code enforcement officer, janitor, deputy police chief, police officers, highway foreman, equipment operator and laborer); East Grand Teachers' Ass'n/MTA/NEA and SAD No. 14 Board of Directors, No. 92-UD-01 (MLRB Oct. 1, 1991)(approving unit which included teachers' aides, school secretaries, the food service director, bus drivers and custodians); AFSCME Council 93 and Town of Sanford, No. 92-UD-03 (MLRB Feb. 21, 1992), aff'd, No. 92-UDA-03 (MLRB May 7, 1992) (approving unit which included the planning director, the assessor, the code enforcement officer, the director of highways and sanitation, and the deputy fire chief); and Bangor Firefighters Ass'n, Local 772 and City of Bangor, -18- _________________________________________________________________ No. 89-UD-06 (MLRB Jan. 26, 1989) (approving the accretion of a mechanic to a unit consisting of firefighters, dispatchers and inspection officers). The employees in the Richmond municipal unit have a commonality of purpose (ensuring the health, safety and welfare of the citizens of the town), even though the day-to- day duties of the positions in the bargaining unit are divergent. In summary, the duties of the police officers are different from the duties of the other positions in the bargaining unit. The same conclusion can be reached regarding all of the positions, or groups of positions, in the bargaining unit. If this were a unit determination for a new unit of police officers, and the police officers petitioned for a unit separate from other town positions, this factor would be given considerable weight.[fn]3 The hearing officer is convinced from a review of relevant Board precedent, however, that undue weight should not be given to this factor when considering a severance petition for an existing "wall-to-wall" bargaining unit, particularly when that unit has had a relatively long and successful bargaining history (as more fully described in factor (8), below). In the context of the present severance petition, this factor neither supports nor undermines a finding of a community of interest between the police positions and the other positions in the bargaining unit. (2) Common supervision and determination of labor relations policy. All of the police officers are supervised by the Police Chief. The parties did not supply further evidence about the Town "chains of command." Presumably the public works employees and the town office employees have intermediate supervisors. All ____________________ 3 In an initial unit determination decision, the hearing examiner must determine whether the unit proposed by the petitioner is an appropriate one, not whether the proposed unit is the most appropriate unit. Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04, slip op. at 4 (MLRB June 16, 1980). It must be recalled that when the Richmond town employees were first organized in 1994, the employees petitioned for a wall-to-wall unit and the unit was established as such, largely by agreement. -19- _________________________________________________________________ Town employees are ultimately supervised by the Town Manager. The labor relations policy is uniform for all bargaining unit positions, based upon the existing collective bargaining agreement and other personnel policies. Since immediate supervision is not common, but ultimate supervision and determination of labor relations policy is common, this factor neither supports nor undermines a finding of community of interest between the police positions and the other 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 two or three step system (entry, after one year and, for police officers and the office manager, after two years). Under the current agreement, the entry level wages vary from $10.82 (central office staff) to $15.00 (public works foreman). Wages are subject to various adjustments under the agreement (shift differential, education/training adjustment, overtime and compensatory time). Thus, while the pay rate between certain positions differs to a degree, there is similarity in the scale and manner of determining earnings, and this has been true through the five collective bargaining agreements for this unit. This factor supports a finding of community of interest between the police positions and the other 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 extensive evidence regarding the hours of work. The police officers are the only town positions to work on a shift basis. The witnesses did not identify this difference to be any source of conflict amongst unit employees. This factor supports a -20- _________________________________________________________________ finding of community of interest between the police positions and the other 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. Again, the parties did not present extensive evidence on this issue. To be hired as full-time police officers for the town, an applicant must have completed a basic 100-hour course at the MCJA. Within one year of hire, a police officer must complete an 18-week law enforcement course, also at the MCJA. The parties did not present extensive evidence on the qualifications, skills and training of the remaining employees in the bargaining unit. Presumably, the qualifications, skills and training required of the other employees varies considerably, in keeping with the variety of positions in this unit. It could be found that the police officers are a "distinct and homogenous group" separated by qualifications, skills and training from the other bargaining unit positions, but the same conclusion could be reached about the public works employees as a group or the administrative employees as a group. Cf. Mallinckrodt Chemical Works and IBEW, Local No. 1, 162 NLRB at 397. As more fully explained in factor (1) above, this factor neither supports nor undermines a finding of community of interest in this, a severance petition. (6) Frequency of contact or interchange among the employees. The police officers are located in an office in the town hall, in the same building as the administrative employees. The public works employees are based in a building across the street. There is frequent contact and interchange among all the employees in the unit, due to their proximity and due to the nature of their jobs. This factor supports a finding of community of interest between the police positions and the other positions in the bargaining unit. -21- _________________________________________________________________ (7) Geographic proximity. See discussion in section (6), above. (8) History of collective bargaining. This factor, as discussed earlier, is an important one in considering a petition for severance. Past MLRB hearing examiners have examined various aspects of the collective bargaining history in evaluating this factor in severance petitions. Corporals and Sergeants, Cumberland County Sheriff's Office and AFSCME Council 93 and Cumberland County Commissioners, No. 02-UD-03 (MLRB May 31, 2002) (length and stability of bargaining relationship; participation in union affairs by the group seeking severance; the seeking and obtaining of special proposals for the group at the bargaining table); Ryan Adams and Teamsters Local Union No. 340 and City of Waterville, No. 03-UD-02 (MLRB Oct. 28, 2002) (same; also, adequacy of union representation in grievances); Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra (same; also, whether unit created by agreement); Teamsters Local Union No. 48 and Council No. 74, AFSCME 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 Union No. 48 and State of Maine (Institutional Services Unit), et al., No. 83-UD-25 (MLRB Jan. 10, 1984), aff'd, No. 84-A-02 (MLRB Apr. 2, 1984) (same).[fn]4 ____________________ 4 Past hearing examiners have also 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 -22- _________________________________________________________________ In the present matter, the parties have had a fairly lengthy history of collective bargaining, about ten years. The parties have negotiated a total of five collective bargaining agreements and have needed only limited third-party intervention in settling the first two agreements. In accordance with internal Association policy, a member of the police department must hold one of the three Association officer positions. Historically, one of the police officers has always held the position of Association vice president. All Association officers sit on the negotiating committee, as well as on the executive and grievance committees. Therefore, the police have had ample opportunity to be involved in all aspects of the Association, particularly negotiating the contracts, and the police have taken advantage of this opportunity. The parties have had a good history of labor relations. Very few grievances have been filed and, when filed, often have been resolved at the first step. The Association has taken only one grievance to arbitration, and prevailed in the arbitration. The police witnesses testified about two grievances they filed in the last year. In one case, a police officer was "shorted" eight hours in a schedule. He filed a grievance, and was paid for the time he lost. In the other case, a police officer (also the vice president of the Association) filed a grievance about the need for the police to find their own replacements, even in times of pressing family situations. This officer met with the Police ____________________ 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 Union No. 48 and State of Maine (Institutional Services Unit),et al., No. 83-UD-25, slip op. at 14. -23- _________________________________________________________________ Chief, along with the president of the Association. An agreement was reached between the Police Chief and the police officer. The officer testified that he did not believe the Police Chief was fully complying with the agreement, but he has chosen not to pursue the matter further. In short, there was no proof that the police have been inadequately represented by the Association in the handling of grievances. The greatest concern expressed by the police officers who testified was that the unique needs of the police have not been addressed during contract negotiations. As stated by the petitioner in the original severance petition, " . . . many articles of interest particular to police officers will not be addressed due partly because we have a small vote in the REA and articles important to police officers are not so important to town clerks or others not familiar with law enforcement." As stated previously, a member of the police department has always sat on the negotiating team. The police officers have sought and achieved numerous articles in the collective bargaining agreements that address their unique needs (including, for example, a shift differential, a detailed list of uniform and equipment to be supplied by the town, special pay for detail work, and reimbursement for the cost of items to attend the MCJA up to $150). This was particularly evident in the negotiations for the current agreement. In the fall of 2002, when the Association held meetings to formulate contract proposals, one of the police officers created a "wish list" of 14 items that the officers particularly wanted to see addressed during the negotiations. These items were duly reviewed by the Association, and most were presented at the table. As more fully described in the findings of fact, many of these police items were achieved during the negotiations. Even if the association had not been as successful as they were in achieving the police items, this would not have established inadequate representation, given the -24- _________________________________________________________________ realities of the collective bargaining process.[fn]5 One of the police witnesses testified that the top concern of the police officers was improving the health and retirement benefits offered to the employees (Tr. at 7). The Association was successful in obtaining improved health and retirement packages in the last negotiations. Concern about these issues is not peculiar to the police officers, nor does it tend to set them apart as a distinct group with interests that conflict with the other positions in the bargaining unit. Another police witness cited his concern that if he damaged a personal item (such as eyeglasses) in the line of duty, the town would not reimburse him for the loss (Tr. at 45). Neither this witness nor the other witnesses were certain of the town's policy on this issue. In any event, this officer was hired after the negotiations for the latest agreement were under way. He has not attempted to bring this concern to the attention of the Association. Finally, the Association has been a successful and cohesive unit for about ten years. All of the positions in the bargaining unit are members of the Association. The Association is not very active (meeting only about one a year, except for contract negotiations), and thus relies extensively on its paid representative. The Association's representative has extensive experience in the labor relations field, including representing police officers in other bargaining units. The petition identifies the Richmond Police Association (RPA) as the proposed ____________________ 5 As the United State Supreme Court has noted: Inevitably differences arise in the manner and degree to which the terms of any negotiated agreement affect individual employees and classes of employees. The mere existence of such differences does not make them invalid. The complete satisfaction of all who are represented is hardly to be expected. Ford Motor Company v. Hoffman, 345 U.S. 330, at 338 (1953). -25- _________________________________________________________________ bargaining agent, if this petition is granted and the police officers become a separate unit. However, the RPA does not yet exist, and there is no basis upon which to conclude that the RPA could represent the police officers better or obtain more unique proposals for the police officers than the Association. For all these reasons, the history of collective bargaining strongly supports a finding that a community of interest exists amongst the present bargaining unit, and that severing the police officers would undermine a bargaining relationship which has been relatively long, stable and fruitful for both sides. Accord Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No. 84-UD-17, slip op. at 12; Teamsters Local Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 18-19. (9) Desires of the affected employees. As this hearing examiner concluded in a previous severance case, the desires of all the employees in the bargaining unit--both the employees who would become severed and the employees who would remain in the unit--should be considered in these matters. Both groups of employees would be "affected," if the present bargaining unit were to be divided. See Ryan Adams and Teamsters Local Union No. 340 and City of Waterville, No. 03-UD-02, slip op. at 31. As another hearing examiner stated: With respect to the desires of the employees who support the instant petition, it is clear that their desires cannot transcend other interests of equal importance. Not the least among these are the interests of the other employees in the existing unit and the interest of stability in the collective bargaining process. The history of collective bargaining here has spanned 14 years. This arrangement should not be disturbed lightly, particularly since it has worked reasonably well - albeit not perfectly. Teamsters Local Union No. 48 and Council No. 74, AFSCME and City of Portland, No. 81-UD-10, slip op. at 20. The evidence here established that the current full-time -26- _________________________________________________________________ police officers (three employees) all desire placement in a separate bargaining unit. The desires of the other employees in the bargaining unit was not as clear. Two employees who testified at the hearing (a public works employee and the assistant finance director/office manager) oppose the severance petition. These employees did not know the desires of the remaining employees in the bargaining unit, nor was other evidence of their desires presented. The police officers are uniform in their present desire to be severed from the larger unit, and the hearing examiner has given weight to this. Their desire to be severed seems to be based, however, upon unrealistic expectations of the collective bargaining process. As noted earlier, the Association has obtained a variety of contract provisions that already address the unique concerns of the police officers. The concerns about good health insurance and retirement are concerns shared by all in the unit. It is therefore difficult to find that the desires of the police officers (not shared by at least some of the remaining members of the bargaining unit) demonstrates a lack of community of interest amongst the existing unit. The recent discontent of the police officers is insufficient to break up a functioning bargaining unit with a stable and relatively long bargaining history. (10) Extent of union organization. This factor is not particularly valuable in evaluating a severance petition. The Town has no other organized bargaining units. If the police officers were severed, there would be two separate bargaining units represented (possibly) by different bargaining agents. The severance would otherwise have an unknown effect upon the extent of union organization in the Town. This factor neither supports nor undermines a finding of community of interest between the police positions and the other positions in the bargaining unit. (11) The employer's organizational structure. As the Town -27- _________________________________________________________________ has a limited number of employees, this is probably not a particularly useful factor in evaluating this severance petition. The bargaining unit is roughly divided into three departments - police, highway, and administration. Each "department" has only a few employees. The police report directly to the police chief, who reports to the town manager. A similar chain-of-command apparently exists in the other two departments. Considering the small size of this workplace, the employer's organizational structure neither supports or undermines the finding of a community of interest between the police positions and the other positions in the bargaining unit. Summary of community of interest factors. In conclusion, a review of many of the community of interest factors supports a finding that the police officers share a community of interest with the positions in the existing bargaining unit. Of particular importance in this, a severance petition, the bargaining history of this unit has been a relatively long and fruitful one. This factor especially distinguishes it from Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra, the only case known to the hearing examiner where a severance petition was granted by this Board. In that case, where patrol officers were severed from a bargaining unit of corrections officers and support personnel, the unit had been in existence about two years, with only one collective bargaining agreement negotiated. Cf. Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No. 84-UD-17 (MLRB May 31, 1984) (where petition to sever firefighters from a bargaining unit consisting of firefighters and public works employees denied; while job functions were substantially different, the unit had bargained together at least ten years, with three collective bargaining agreements negotiated). While some factors here support a finding that no community of interest exists between the police officers and the -28- _________________________________________________________________ rest of the unit (such as similarity in qualifications, skills and training), these factors would be given more weight if this were an initial unit determination petition, rather than a petition to sever. Considering all of the community of interest factors, the hearing officer cannot find that the police officers should be severed from the bargaining unit. Non-proliferation policy. This conclusion is supported by the Board's policy against the proliferation, through fragmentation, of small bargaining units. The rationale underlying the Board's policy against non-proliferation is as follows: Small bargaining units must be bargained for and serviced just as do large bargaining units. The State is obligated to provide under 26 M.R.S.A. 965 the same mediation and arbitration services for small units as are provided for large units. The formation of small bargaining units among employees in the same department can thus result in the employer, the union, and the State expending an amount of time, energy and money all out of proportion to the number of persons served. MSAD No. 43 and MSAD No. 43 Teachers Ass'n, No. 84-A-05, slip op. at 4, 5 (MLRB May 30, 1984). While this policy has most often been relied upon to prevent the creation of one- or two-member bargaining units of supervisors, the policy has also been applied in the context of severance petitions. See Teamsters Local Union No. 48 and County of Cumberland and Council No. 74, AFSCME, supra (creation of severed bargaining unit consisting of 24 employees allowed; does not contravene anti-proliferation policy); Teamsters Local Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No. 84-UD-17 (MLRB May 31, 1984) (creation of six- employee bargaining unit carved from unit of 17 employees denied; non-proliferation policy considered in addition to community of interest factors). Here, the petition, if granted, would result in the creation of two small bargaining units--one three-person unit and one seven-person unit. While the creation of such small -29- _________________________________________________________________ units would not absolutely contravene the Board's non- proliferation policy, the policy lends additional support for the conclusion here that the police officers should not be severed from the municipal bargaining unit. CONCLUSION The Petition for Unit Determination filed on April 29, 2003, by Eric Bell, seeking the severance of a unit consisting of the full-time police officers from the Richmond municipal employee bargaining unit, is denied. These positions will remain as part of the presently-configured bargaining unit. Dated at Augusta, Maine, this 26th day of September, 2003. 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. -30- _________________________________________________________________