STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 04-UC-01
Issued: September 24, 2004
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)
MAINE STATE EMPLOYEES ASSOCIATION, )
)
Petitioner, )
)
and ) UNIT CLARIFICATION
) REPORT
STATE OF MAINE, )
)
Employer. )
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PROCEDURAL HISTORY
This unit clarification proceeding was initiated on July 1,
2003, when Timothy L. Belcher, Esq., attorney for the Maine State
Employees Association ("MSEA" or "union"), filed a Petition for
Unit Clarification with the Maine Labor Relations Board ("Board")
for a determination whether the positions in the Biologist II
classification, currently included in the State Employee
Professional and Technical Services Bargaining Unit ("Pro-Tech
Unit") should be included in the Supervisory Services Bargaining
Unit ("Supervisory Unit") pursuant to 979-E(3) of the State
Employees Labor Relations Act ("SELRA"). On July 15, 2003, the
State of Maine Bureau of Employee Relations ("State") filed a
Motion to Extend Time to File Responses to Unit Clarification
Petitions, which motion was granted.[fn]1 In the months following
the filing of the petition, the parties and Board staff
participated in several prehearing conferences in an attempt to
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1 The petitioner simultaneously filed a second petition relating
to the Clerk IV positions, Case No. 04-UC-02. A separate hearing and
decision is being conducted regarding that petition. In neither case
has the employer filed a response to the unit clarification petition.
However, the parties are in agreement that the jurisdictional elements
for a unit clarification petition have been met in this case. The
union has not filed any motion relating to the employer's failure to
file a response to the petitions.
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determine whether the parties could agree to the movement of some
of the Biologist II positions from the Pro-Tech Unit to the
Supervisory Unit. To this end, the parties crafted a survey to
be sent to all employees holding the Biologist II positions to
help determine their supervisory status. The surveys were sent
to all employees holding the Biologist II positions on October 2,
2003, by Board staff. Board staff handled and compiled the
surveys that were returned.
During the course of these proceedings, the number of
Biologist II positions held in state government remained constant
at 31 (certain positions were vacant at times). On February 3,
2004, the parties submitted an Agreement on Appropriate
Bargaining Unit that moved the positions of 26 Biologist II's
from the Pro-Tech Unit to the Supervisory Unit. All of the
positions involved were employed by the Department of
Environmental Protection, the Department of Inland Fisheries and
Wildlife, or by the Atlantic Salmon Commission. On July 14,
2004, (the date of the hearing in this matter), the parties
submitted a second Agreement on Appropriate Bargaining Unit that
moved the positions of three Biologist II's, all employed by the
Department of Inland Fisheries and Wildlife, from the Pro-Tech
Unit to the Supervisory Unit. At the time of the hearing,
therefore, only two positions remained in dispute, both employed
by the Department of Environmental Protection.
After due notice, an evidentiary hearing on the petition as
it related to these two remaining positions was held by the
undersigned hearing examiner on July 14, 2004, at the Board
conference room in Augusta, Maine. Timothy L. Belcher, Esq.,
appeared on behalf of the MSEA. Joyce A. Oreskovich, Esq.,
appeared on behalf of the State. Prior to the commencement of
the formal hearing, the parties met with the hearing examiner to
offer exhibits into evidence and to formulate stipulations of
fact. The union presented as its witnesses Jeanne DiFranco and
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David Halliwell, both Biologist II's with the Department of
Environmental Protection. The State Bureau of Employee Relations
presented no witnesses. The parties were given the opportunity
to examine and cross-examine witnesses, offer evidence and
present argument. The parties submitted written closing
arguments August 9, 2004.
JURISDICTION
The jurisdiction of the executive director or his designated
hearing examiner to hear this matter and make a determination
lies in 26 M.R.S.A. 979-E.
STIPULATIONS
The parties stipulated to the following:
The factors required for a unit clarification petition are
present in this matter in that 1) there is currently a certified
or recognized bargaining representative, 2) there is no question
concerning representation, 3) the circumstances surrounding the
formation of the existing bargaining unit have changed
sufficiently to warrant modification in the composition of the
bargaining unit, and 4) the parties are unable to agree on
appropriate modifications as this relates to the two positions
still at issue in this matter.
EXHIBITS
The following exhibits were offered into evidence without
objection:
Union-1 DiFranco Supervisory Status Survey
Union-2 Letter dated August 29, 2001, and
accompanying paperwork related to
reclassifying of DiFranco's position from
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Biologist I to Biologist II
Union-3 Two e-mails from Andrew Fisk dated
February 25, 2004, and March 2, 2004
Union-4 Administrative Report of Work Content Form
completed May 20, 1998, regarding Biologist
II position held by Halliwell
FINDINGS OF FACT
Findings regarding Jeanne DiFranco
1. Jeanne DiFranco has been employed by the Department of
Environmental Protection ("DEP") for 15 years. She was hired as
an Environmental Specialist II, then promoted to Environmental
Specialist III, and then promoted to Biologist I. Her position
was reclassified to Biologist II effective November, 2000.
2. Ms. DiFranco is employed in the Bureau of Land and Water
Quality, Division of Environmental Assessment. The Division is
divided into several units. Each unit is headed by a Biologist
III or an Environmental Specialist IV (both positions currently
in the Supervisory Unit). Ms. DiFranco is employed in the
biological monitoring unit headed by Susan Davies, a Biologist
III.
3. The employees in the biological monitoring unit are
responsible for developing methods of assessment and assessing
rivers, streams and wetlands in the state, reviewing projects
that impact these resources, and providing information and
technical assistance to other DEP programs. The unit is divided
into two areas: rivers and streams (headed by Leon Tsomides,
Biologist II) and wetlands (headed by Ms. DiFranco).
4. The wetlands monitoring program started in 1998 as a
pilot project funded by the U.S. Environmental Protection Agency
("EPA"). Ms. DiFranco's job involves developing and implementing
a wetlands monitoring program for the state, working at the state
and federal level to develop policies regarding the monitoring of
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wetlands, writing grants and seeking funding for the wetlands
monitoring program, and creating budgets for her program.
5. The wetlands monitoring program has, at times, utilized
staff to assist Ms. DiFranco in her work, and it has been part of
Ms. DiFranco's job to supervise this staff. For approximately
six months in each of the years 2001, 2002, and 2003, a full-time
employee was employed to work under Ms. DiFranco in the wetlands
program, hired by Ms. DiFranco through a temporary staffing
agency. Since March, 2004, to the present time, an acting
capacity full-time Environmental Specialist II has been employed
to work under her, hired and supervised by Ms. DiFranco (the
individual filling this position was the same individual who had
been employed through the temporary staffing agency for two
years). This arrangement is not permanent, however, as the
acting capacity position is "on loan" from another program within
the DEP, and will likely end in January, 2005, unless the program
"loaning" the position continues to find the position unneeded.
6. Ms. DiFranco set up the interviews and hired the acting
capacity Environmental Specialist II working in the wetlands
program. She trained the employee, created her work program, and
evaluates her work. She helped obtain proper ergonomic equipment
for the employee to use. She signs her time sheet.
7. Each year, Ms. DiFranco also supervises a field crew of
several full-time or seasonal DEP employees, and accompanies the
crew in doing hands-on monitoring of wetlands, often in remote
areas of the state. This occurs for approximately four weeks
each summer and four weeks each fall. Ms. DiFranco selects the
crew, equips them, and directly supervises them on a day-to-day
basis while they are doing the field work.
8. The other program that is part of the biological
monitoring unit, the rivers and streams assessment program, is a
more established program. Mr. Tsomides, who heads this program,
supervises one full-time Biologist I and one seasonal
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Conservation Aide to assist him in this program. Mr. Tsomides
holds one of the 29 Biologist II positions that the parties have
agreed should be moved from the Pro-Tech Unit to the Supervisory
Unit, as part of this petition.
9. Ms. DiFranco's supervisors have worked to get permanent
full-time staff to assist her in the wetlands program. There is
not a lack of funds for the position per se, but an inability to
obtain permission to add a permanent state position for the
program through the legislative process.
10. An Administrative Report of Work Content ("FJA") was
written regarding Ms. DiFranco's job in 2000, resulting in the
reclassification of her position from Biologist I to Biologist II
(Union Exh. No. 2). The portion of the report describing the
tasks of her position states that she "directs, advises, oversees
and trains field crew personnel to achieve wetland monitoring
goals and objectives."
11. When the head of the biological monitoring unit
(Ms. Davies, Biologist III) was on a six-month leave in 2003 -
2004, the position was held in acting capacity for three months
by Ms. DiFranco and for three months by Mr. Tsomides.
12. In January, 2004, Ms. DiFranco was sent by her
department to the Maine Leadership Institute, a three-day
training for state employee managers and supervisors.
13. Due to her job responsibilities, Ms. DiFranco views
herself as a supervisor and believes she has a community of
interest with employees in the Supervisory Unit.
Findings regarding David Halliwell
14. David Halliwell has been employed by the Department of
Environmental Protection for 5 years. He was hired as a
Biologist II and remains in that position.
15. Mr. Halliwell is also employed in the Bureau of Land
and Water Quality, Division of Environmental Assessment.
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Mr. Halliwell is employed in the lake assessment unit within the
Division, a unit headed by Ray Bouchard, Biologist III.
16. The employees in the lake assessment unit are
responsible for developing methods of assessment and assessing
lakes in the state and for reviewing projects that impact these
resources. The unit is divided into three programs: baseline
monitoring (headed by Linda Bacon, Biologist II), invasive
species (headed by John McPhedran, Biologist II) and nutrients
and pollutants (headed by Mr. Halliwell, Biologist II).
17. Mr. Halliwell's job involves studying and creating
remediation plans for the 33 lakes in Maine which do not meet
water qualify standards under the Clean Water Act. His job
particularly involves working with "stakeholder" groups and
associations in watersheds of some of these 33 lakes. These
groups and associations are often the recipients of federal
grants to restore the lakes in question, based on the
recommendations of Mr. Halliwell's program. His position also
involves grant and report writing, and developing and tracking
grants for work done by groups outside the DEP.
18. The lake assessment program has, at times, utilized
staff to assist Mr. Halliwell in his work, and it has been part
of Mr. Halliwell's job to supervise this staff. From the time of
his hire until sometime in 2003, a half-time Biologist I was
employed to work under Mr. Halliwell in the lake assessment
program, hired by Mr. Halliwell and Mr. Bouchard. Mr. Halliwell
was this employee's supervisor. Mr. Halliwell attended new
employee orientation as this employee's supervisor. He trained
the employee, and evaluated and monitored his work. He signed
his time sheet.
19. This half-time Biologist I resigned from his position.
The DEP then moved the position to another program within the
Department.
20. Mr. Halliwell works closely with a quasi-governmental
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entity called the Maine Association of Conservation Districts
("MACD"), an umbrella organization of various soil and water
conservation districts in the state. The MACD employs an
executive director. In recent years, the MACD has received
federal money to hire additional employees (a project coordinator
and two part-time employees) to work on lake remediation
projects. While these three MACD employees are not state
employees, Mr. Halliwell effectively supervises them in their
work. He has created work plans for these employees, meets with
them regularly (usually at DEP offices), and evaluates their
work. He has supplied them with equipment.
21. The work of these three MACD employees is funded with
grants from the EPA. The DEP has a "partnership performance"
agreement with the EPA. A major part of Mr. Halliwell's job is
the oversight and coordination of the work of these MACD
employees; Mr. Halliwell's job evaluation is, in part, based on
his successful oversight of these employees and their work on the
plans that he has developed.
22. The other Biologist II's who work in the lake assess-
ment unit supervise one or more state employees. Ms. Bacon, who
heads the baseline monitoring program, supervises one Biologist I.
Mr. McPhedran, who heads the invasive species program, supervises
one Biologist I and one Environmental Specialist. Ms. Bacon and
Mr. McPhedran both hold one of the 29 Biologist II positions that
the parties have agreed should be moved from the Pro-Tech Unit to
the Supervisory Unit, as part of this petition.
23. An Administrative Report of Work Content ("FJA") was
written regarding Mr. Halliwell's job in 1998 when he was hired
(Union Exh. No. 4). The portion of the FJA describing the tasks
of his position states that he "supervises personnel within the
Lakes Program and also outside the program on a project-specific
basis."
24. Mr. Halliwell was sent by his department to "Managing
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in State Government" training, a precursor to the Maine
Leadership Institute, a training for state employee managers and
supervisors.
25. Due to his job responsibilities, Mr. Halliwell views
himself as a supervisor and believes he has a community of
interest with employees in the Supervisory Unit.
Other findings
26. Twenty-six employees holding the Biologist II position
completed and returned the supervisory status survey. All of
these positions have since been transferred from the Pro-Tech
Unit to the Supervisory Unit by agreement of the parties. Of
these employees, the majority indicated that they supervise one,
two, or three permanent state employees. A few stated that they
supervised as many as four or five permanent state employees.
Many employees wrote that they also supervised some seasonal,
project or contract positions.
27. Of the employees completing the surveys, several
indicated that they supervised one or no full-time state
employees. These included: Merry Gallagher (no permanent
positions, one project position); Charles Hulsey (one permanent
position, numerous seasonal contractors); Douglas Kane (one
permanent position, numerous seasonal contractors); Tim Obrey (no
permanent positions, one project position); James Stahlnecker
(one permanent position, one seasonal position); Joseph Wiley (no
permanent positions, one 16-week seasonal position); and Jeffrey
Williams (no permanent position, assures contract compliance by
foresters and logging contractors to whom he awards contracts).
28. Of the employees completing the surveys, several
(including Richard Hoppe, Thomas Schaeffer, and James
Stahlnecker) indicated that they exercised some level of
supervisory authority over employees working for the U.S.
Department of Agriculture.
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29. The parties were aware of no job classifications in
state government being "split" between more than one bargaining
unit.
DISCUSSION
The parties stipulated that the various threshold require-
ments for a unit clarification petition, defined in 979-E(3)
are present in this matter. Therefore, the executive director
has jurisdiction to consider this petition. The sole issue
presented is whether the two Biologist II positions held by
Ms. DiFranco and Mr. Halliwell should remain in the Pro-Tech
Unit, or whether they should be moved to the Supervisory Unit,
as have the other 29 Biologist II positions who were moved by the
agreement of the parties. As the parties have been unable to
agree whether these two positions should remain in the Pro-Tech
Unit or be moved to the Supervisory Unit, the hearing examiner,
as designee of the executive director, may make this decision
pursuant to 979-E(1).
In making the determination whether these two positions
should be moved to the Supervisory Unit, the primary question is
whether these positions share a "community of interest" with the
positions currently in the Supervisory Unit. SELRA contains the
same "community of interest" language as the other state
collective bargaining laws. 979-E(2) provides:
In order to insure to employees the fullest freedom in
exercising the rights guaranteed by the chapter, to
insure a clear and identifiable community of interest
among employees concerned, and to avoid excessive
fragmentation among bargaining units in State
Government, the executive director of the board or his
designee shall decide in each case the unit appropriate
for purposes of collective bargaining.
The requirement that the hearing examiner examine the community
of interest of positions in a bargaining unit was explained by
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the Board over 20 years ago (examining identical language in the
Municipal Public Employees Labor Relations Law), 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, at 4, 1 NPER 20-10031
(MLRB Oct. 17, 1979).
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, 22(3) of the Board Rules.
The community of interest factors are often examined in the
context of creating a new bargaining unit. See e.g., Portland
Administrative Employees Ass'n and Portland Superintending School
Committee, No. 86-UD-14 (MLRB Oct. 27, 1986), aff'd, No. 87-A-03
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(MLRB May 29, 1987) (the employees' right to self-organization is
best protected when their judgment on the appropriate unit is
respected, as long as the positions share the community of
interest required). In the present matter, however, the
bargaining units at issue have existed for over 25 years.
It is instructive to briefly review the creation of the state
bargaining units in order to make a proper determination in this
case.
In 1976, after months of hearings, the executive director
issued a unit determination report creating seven state
government bargaining units: Administrative Services;
Professional and Technical Services; Institutional Services; Law
Enforcement, Public Safety and Regulatory Services (Non-Police);
State Police Services; Operations, Maintenance and Support
Services; and Supervisory Services. Council No. 74, AFSCME and
Office of State Employee Relations, No. 75-UD-04, et al. (MLRB
Sept. 22, 1976). The Executive Director opted not to establish
bargaining units based on departmental lines, but rather grouped
job classifications that shared a community of interest. With
the exception of the State Police Services bargaining unit, the
bargaining units each contained job classifications which cut
across departmental lines. In all cases but one, entire job
classifications were placed in one bargaining unit or another;
job classifications were not "split" based on specific job
duties.[fn]2
For each bargaining unit created, the executive director
gave a summary regarding the similarities between the
classifications placed in the bargaining unit, and described how
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2 The only exception noted in the 1976 report was the Custodian
classification, which was included in both the Institutional Services
Unit and the Operations, Maintenance and Support Unit. The Executive
Director recommended that the problem of splitting a job classifica-
tion between two units be resolved by renaming the Custodian classifi-
cation in the Institutional Services unit. Council No. 74, AFSCME and
Office of State Employee Relations, supra, No. 75-UD-04, at 12.
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these classifications shared a community of interest for purposes
of collective bargaining. When the Professional and Technical
Services Unit was created, the positions of Biologist I,
Biologist II, Biologist III, and Biologist IV, were all placed in
this unit.[fn]3 The executive director stated that:
Employees in this unit generally possess a post-
secondary school education and/or are involved in the
performance of professional or technical functions
which require specialized training and, in some
instances, include a license or registration
requirement. This specialized training is to be
distinguished from general academic preparation or
participation through an apprenticeship or training
program. The work product of employees in this unit
may be of an intellectual nature and may vary in
content and scope although usually performed during a
normal work week. These employees may have to exercise
discretion in scheduling and performing their tasks and
these tasks may be of a nature which may not be
standardized (i.e., not scaled on productivity
schedules commonly associated with routine, manual or
physical tasks). These employees frequently perform
interrelated work in which the employee-supervisor
relationship is only incidental to the work produced.
Job performance for these employees frequently
qualifies them for promotions to positions of a similar
nature with increased responsibilities and increased
compensation. They may be involved in analysis,
design, construction, operation and/or maintenance of
special programs and, consequently, consider themselves
as "professional" and they may affiliate with
professional organizations. These employees are
concerned with job fulfillment, professional status,
incentive awards, and in-service or educational
benefits to a point which may distinguish them from
other state employees. Of paramount importance is
parity of pay and professional affiliations with
counterparts in the private sector. These employees
are primarily of the "white collar" variety and
frequently associate with other "white collar" workers
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3 It is not clear to the hearing examiner whether the
classification of Biologist IV still exists. The parties agreed to
move the Biologist III position from the Pro-Tech Unit to the
Supervisory Unit in 1990.
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in the performance of their duties.
In creating the Supervisory Personnel Services Unit, the
executive director stated that:
Employees in this unit fill "middle management"
positions of a supervisory nature as contemplated in
Section 979-E of the State Employees Labor Relations
Act but are not excluded per se from coverage
thereunder pursuant to the provisions of Section 979-A,
Paragraph 6. These employees are responsible for the
direction and efficient and effective utilization of
other employees and, under collective bargaining, will
assume varying degrees of responsibility for contract
administration (i.e., criteria set forth in Section
979-E of the Act). These employees have special
interest in job content, extent and nature of
supervision, promotional opportunities and
managerial/supervisory training and development.
A review of the present collective bargaining agreements for the
Pro-Tech and Supervisory units show that classifications in each
unit still cut across departmental lines. Based on a review of
classification titles alone, the classifications within each
bargaining unit have very different day-to-day job functions.
Over the years, the parties have filed numerous agreements
with the Board placing new classifications in the appropriate
bargaining unit, excluding some classifications under SELRA from
a bargaining unit, or moving classifications from one bargaining
unit to another. A review of the Board files regarding the Pro-
Tech and Supervisory units shows very few matters on bargaining
unit placement have ever been litigated to decision by a hearing
examiner. The parties have presumably created, through agreement
and negotiation, their own internal guidelines regarding
community of interest and the proper unit placement of classifi-
cations.
The hearing examiner has reviewed this history to underscore
the rather unique posture of this case. While the community-of-
interest standard is clearly the proper standard to apply, the
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hearing examiner has very little information regarding the
interests that the classifications in the two bargaining units
share. A review of the Supervisory Unit collective bargaining
agreement shows an extremely diverse group of classifications in
that unit including, by example: Aircraft Mechanic Supervisor,
Assistant Director of Audits, Assistant Executive Director of
Board of Nursing, Chemist III, Business Manager I, Chief Motor
Vehicle Examiner, Correctional Officer III, Ground Equipment
Supervisor, Library Section Supervisor, Principal, Plumber
Supervisor, Senior Tax Examiner, State Police Lieutenant, and
Systems Group Manager. The classifications in the Supervisory
Unit supervise employees in all of the other bargaining units and
even other employees in the Supervisory Unit. Since these
classifications are so dissimilar in terms of training,
experience, pay, supervision, etc., the hearing examiner can
conclude only the obvious: that the primary factor that unites
the interests of these classifications is simply that they are
supervisors. The nature and extent of supervisory duties
performed by each classification (or even by different positions
within each classification) undoubtedly varies as well.
Section 979-E(1) of SELRA provides guidance on when
supervisory employees should be excluded from a bargaining unit:
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
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implement those standards.
The Board has often interpreted the parallel provision in the
MPELRL, 26 MRSA 966(1), usually in determining whether
supervisory employees may be placed in the same bargaining unit
as the employees whom they supervise. In Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care
Professionals, No. 85-A-01, at 8 (MLRB Feb. 6, 1985), the Board
stated:
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 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.
The focus of this three-part test is to determine whether the
supervisor exercises a level of control over employment-related
issues that would likely result in a conflict of interest. See
Richmond Employees Ass'n and Town of Richmond, No. 94-UD-09, at
30 (MLRB Apr. 26, 1994).
Applying the language of 979-E(1) to this matter,
Ms. DiFranco performs many of the supervisory functions outlined
in this three-part test. She assigns, oversees and reviews the
work of the Environmental Specialist II who works for her. She
also assigns, oversees and reviews the work of the part-time
seasonal crews put together to perform field work with her.
As the manager of the wetlands evaluation program, Ms. DiFranco
performs many duties that are distinct and dissimilar from
employees whom she supervises, such as policy-making and grant
writing, that align her more with the interests of management
than with the interests of workers whom she supervises.
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Ms. DiFranco interviewed and hired the Environmental Specialist
II, first through a temporary agency and, more recently, as a
direct state employee. She established performance standards for
this employee. While she has not needed to "adjust grievances"
for this employee or to take corrective measures regarding this
employee, she has authority to do so.
As perhaps with most supervisors, the amount of time
Ms. DiFranco must devote to supervision is not constant. For
instance, when Ms. DiFranco first hired the current Environmental
Specialist II, she needed to devote more time to her training and
oversight of her work. At those times of the year when
Ms. DiFranco oversees the field crew, much of her time is devoted
to supervision. On the other hand, Ms. DiFranco has not had
employees to supervise on a consistent basis. The Environmental
Specialist II she currently supervises has been "on loan" from
another DEP program, and may well be returned to that program in
January, 2005.
Mr. Halliwell supervised a full-time Biologist I for about
three years after his hire, performing many of the same
supervisory functions as Ms. DiFranco. However, this position
was lost about two years ago and, since that time, Mr. Halliwell
has not directly supervised any state employees. He has,
however, had a unique supervisory relationship with employees of
a non-profit organization that is the recipient of federal funds
to improve water quality in Maine lakes. The three employees of
this non profit are, in fact, supervised by Mr. Halliwell as he
assigns, oversees, and reviews their work. He established the
performance standards for the work of these employees. He has
secured some equipment for them to use in their work. Because
these employees are employed by the non-profit organization,
Mr. Halliwell does not perform some supervisory functions as
described in 979-E(1) (adjusting grievances, taking corrective
measures and, to some extent, scheduling). On the other hand,
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Mr. Halliwell clearly has a supervisory relationship with these
non-profit employees because they perform the "front line" work
of Mr. Halliwell's water restoration project. Most importantly,
Mr. Halliwell's own performance is judged by the work that he
does overseeing the work of these employees, and by his
interaction with the non-profit organization that employs them.
While both Ms. DiFranco and Mr. Halliwell perform many of
the supervisory functions described in 979-E(1), the issue
remains whether these are the "principal functions" of their
respective positions. The Board and hearing examiners have
frequently interpreted this same provision as it appears in the
MPELRL, at 966(1).[fn]4 A review of this precedent supports
the
conclusion that determining whether the principal functions of a
position are supervisory is not a formulaic one based on, e.g.,
simply the amount of time spent supervising. As this hearing
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4 The hearing examiner has not found any Board precedent
interpreting 979-E(1) since the initial creation of the state
bargaining units. It would appear that most decisions regarding state
bargaining unit placement (movement of classifications between
bargaining units, placement of new classifications in a bargaining
unit) have been done by agreement. Unfortunately, there is no Board
precedent interpreting 966(1) as it relates to whether a supervisory
employee should be placed in a large, well-established supervisory
bargaining unit as is the issue here. Many of the cases interpreting
966(1) relate to whether one or two supervisors should be placed in
the same bargaining unit as the employees they supervise. So strong
is the Board's policy against the proliferation of small bargaining
units, that some employees with significant supervisory duties have
been placed in the same bargaining unit as their subordinate
employees. See e.g., MSAD No. 14 and East Grand Teachers Ass'n,
No. 83-A-09 (Aug. 24, 1983)(including principal in unit of certified
teachers); Lubec Education Ass'n and MSAD No. 19 Board of Directors,
No. 83-UD-17 (Apr. 13, 1983)(including head bus driver with
significant supervisory duties in unit with educational support
staff). These cases should be contrasted with Town of Kennebunk and
Teamsters Local Union No. 48, No. 83-A-01 (MLRB Oct. 4, 1982) where
the Board upheld the creation of a separate supervisory unit of police
lieutenants and corporals who exercised relatively minimal supervisory
duties, as the union petitioned for a separate unit. Clearly, the
meaning of "principal function" has been fluid, particularly in cases
where the collective bargaining rights of supervisory employees is
preserved by the availability of a separate bargaining unit.
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examiner has said in Rockport Police Officers Association and
Town of Rockport, No. 02-UD-05 (MLRB June 12, 2002), a case
determining whether a patrol sergeant should be included in a
bargaining unit with patrol officers:
This hearing examiner does not believe that the time
spent on supervisory tasks can be the sole gauge of
whether supervisory tasks are the principal function of
a position; for example, if the fact that the patrol
sergeant writes the patrolmen's yearly evaluations can
generate the sort of conflict that should require his
exclusion from the bargaining unit, it makes little
difference that he only spends four hours per year
writing those evaluations. On the other hand, the more
time a supervisor spends actively assigning and
overseeing work of subordinates, the more likely it is
that conflict may arise.
Rockport Police Officers Association, at 12, and cases cited
therein. The primary function analysis is a determination based
on considering a variety of factors, such as the number of
persons supervised, the amount of time spent supervising, and the
types of supervisory functions performed, always with the Board's
instruction in mind that the purpose of creating separate
supervisory bargaining units is to minimize potential conflicts
of interest between supervisors and subordinates and to lessen
conflicts of loyalty for supervisors between duty to their
employer and allegiance to other bargaining unit employees.
Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, at 8 (MLRB Feb. 6, 1985).
Further, the decision is relegated to the sound discretion of the
hearing examiner. MSAD No. 14 and East Grand Teachers
Association, No. 83-A-09, at 12 (MLRB Aug. 24, 1983).
Applying this conclusion to the present matter, the hearing
examiner finds that supervisory functions are the "principal
functions" of the positions of both Ms. DiFranco and
Mr. Halliwell. While neither employee supervises a large number
of employees, the amount of time that they spend supervising is
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significant at times during the year. Even more importantly, the
supervisory duties that they perform are of a significant nature
(hiring employees, establishing performance standards,
scheduling, overseeing work, etc.), setting them apart from the
employees whom they supervise. They are not merely "working
foremen" who have minimal supervisory functions and who spend
most of the work day performing the same tasks as subordinate
employees. See, e.g., Richmond Employees Ass'n and Town of
Richmond, No. 94-UD-09 (MLRB Apr. 26, 1994)(highway foreman who
performs duties similar to subordinates during majority of his
day may be placed in same bargaining unit as subordinates);
Teamsters Local Union No. 48 and Town of Pittsfield, No. 81-UD-09
(MLRB Jan. 15, 1981)(sergeant whose supervisory duties were
limited and who spent the majority of time performing regular
patrol work may be placed in patrol bargaining unit). Further,
both employees credibly testified that their "allegiance" lies
more with other supervisors (and, to an extent, with management),
and that their interests in bargaining matters align them with
other supervisors. The original report creating the state
bargaining units in 1976 emphasized the importance of the
commonality of interest in determining which classifications
should be placed in which units. The hearing examiner knows of
no reason why this is any less true today.
While the hearing examiner has found that the principal
functions of the two positions at issue here are supervisory,
making this decision was a "close call." This is particularly
true of Mr. Halliwell, as the employees over whom he acts as
supervisor are not employed by the state. However, two final
factors uniquely present here give additional support to the
conclusion that these positions should be moved to the
Supervisory Unit. First, 29 of the 31 Biologist II positions
have already been moved to the Supervisory Unit by agreement of
the parties. Most of the Biologist II's who were moved completed
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the supervisory status surveys and reported that they each
supervise a relatively small number of employees. The majority
of Biologist II's reported that they supervised one, two, or
three employees; only a few reported supervising four or five
employees. At least seven Biologist II's reported supervising no
more than one employee, sometimes a seasonal employee, project
employee, or contractor. The Biologist II's further reported a
varying degree of supervisory responsibility. The surveys
therefore showed that, at least amongst this group of employees
now in the Supervisory Unit, the number of employees supervised
or the permanent status of those employees is not always
essential in determining their supervisory status or best
bargaining unit placement. Ms. DiFranco and Mr. Halliwell do not
fall outside the norm set by the other positions in this
classification. If these 29 employees share a community of
interest with the employees in the Supervisory Unit, so do
Ms. DiFranco and Mr. Halliwell.
Second, the parties agreed that classifications in state
government are almost never split between bargaining units and
that no classification is currently split. When the state
bargaining units were created, only one classification was split -
custodians, who were placed in the Institutional Services Unit if
their job required patient contact and care, or who were placed in
the Operations Maintenance Unit if their job did not require this.
The executive director was clearly reluctant to split even this
one classification, finding that it was desirable to "prevent
fragmentation of job titles" and to give employees a fair
description of the functions performed by any given classifica-
tion. Council No. 74, AFSCME and Office of State Employee Relations,
supra, No. 75-UD-04, at 12. In one of the appeals taken from the
original report, the Board concurred that the policies underlying
public sector collective bargaining were best served by not
splitting classifications between units. Interlocutory Decision
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of Appellate Proceedings, No. 77-A-02, at 3 (MLRB Feb. 2, 1977).
The Board later reaffirmed its position in a case involving a
petition to separate corrections employees from the Institutional
Services Unit. In affirming the denial of the petition, the Board
stated:
Under the unit formula adopted at [the time that the
state bargaining units were created], no specific job
classification is found in more than one State employee
bargaining unit. Local 48's severance request, if
successful, would result in five particular
classifications being included in two separate
bargaining units. Such a consequence would undermine
the rationale for the separation of State employee
bargaining units and could have a significant impact on
all such units in the future.
Teamsters and State Institutional Services Unit, et al.,
No. 84-A-02, at 4 (MLRB Apr. 2, 1984). The reasons for keeping
an entire classification in one bargaining unit are numerous.
It serves to put employees on notice of the bargaining unit
placement of their classification and, thus, the terms and
conditions of their employment as described in the unit's
collective bargaining agreement. It allows the employees to
identify and align themselves with other employees in their unit,
particularly for purposes of negotiating and enforcing the
collective bargaining agreement. It is also, presumably, easier
for the employer to administer. Under the unique circumstances
of this case (when the vast majority of positions in the
Biologist II classification have been moved to a new bargaining
unit), the remaining two positions held by Ms. DiFranco and
Mr. Halliwell should likewise be moved.
CONCLUSION
The Union's petition for unit clarification is granted. The
classification of Biologist II, including the positions currently
held by incumbents Jeanne DiFranco and David Halliwell, shall be
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moved from the Professional and Technical Services Bargaining
Unit to the Supervisory Services Bargaining Unit. This change
shall be effective as of the date of this decision, except for
the positions of those incumbents already moved by agreement of
the parties, as reflected in the two Agreement on Appropriate
Bargaining Unit forms filed with the Board on February 3, 2004,
and July 14, 2004.
Dated at Augusta, Maine, this 24th day of September, 2004.
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. 979-G(2), 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.
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