Teamsters Local 48 and Waterville Police Dept., No. 78-UD-25, affirmed, Case No. 78-A-06. [STATE OF MAINE] [MAINE LABOR RELATIONS BOARD [Case No. 78-UD-25] [Issued: May 26, 1978] ______________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) STATE, COUNTY AND MUNICIPAL ) WORKERS ) ) UNIT DETERMINATION REPORT and ) ) WATERVILLE POLICE DEPARTMENT ) ______________________________) As the result of the filing of a Petition for Appropriate Unit Determination dated February 23, 1978 by Robert L. Maier, Assistant to the International Trustee, Teamsters Local Union No. 48, a Unit Determination Hearing was conducted commencing at 1:30 p.m. on Monday, May 15, 1978, in the Bureau of Labor Conference Room, adjacent to the offices of the Maine Labor Relations Board, State Office Building, Augusta, Maine, as provided in 26 M.R.S.A. 966. Present at the hearing for the petitioner were: Robert L. Maier Teamsters Local Union No. 48 John H. Nelson, Jr. Witness and Sergeant, Waterville Police Department Richard A. Tompkins Witness and Detective, Waterville Police Department Norman R. Michaud Sergeant, Waterville Police Department Clinton P. Caron Sergeant, Waterville Police Department Present for the Waterville Police Department were: James E. Millett City Solicitor, City of Waterville Ronald F. Laliberte Witness and Chief of Police, Waterville Police Department Robert W. Palmer, Jr. Witness and City Administrator, City of Waterville Paul A. LaVerdiere Mayor, City of Waterville Also present was the undersigned, Attorney/Examiner for the Maine Labor Rela- tions Board in his capacity as hearing examiner. By its petition, Teamsters Local Union No. 48 ("Local No. 48") seeks formation of a bargaining unit of the supervisory officers employed by the Waterville Police Department, composed of the Captain, Sergeant, Detective, Narcotics Officer and Youth Services Officer positions. In his opening remarks, Mr. Millett on behalf of the City of Waterville ("City") stated that the City contends that the Captain and Youth Services Officer positions are not appropriate for inclusion in a bargaining unit, because these positions involve confidential relationships with the Chief of Police within the meaning of 26 M.R.S.A. 962(6)(C). Title 26 M.R.S.A. 962(6)(C) provides that employees of a public employer whose duties imply a confidential rela- tionship to the executive head, body, department head or division head are not "public employees" under the Municipal Public Employees Labor Relations Act. Under 26 M.R.S.A. 966, anyone excepted from the definition of public employee in 26 M.R.S.A. 962 may not be included in a bargaining unit. The record developed during the hearing shows that the current complement of the positions listed in Local No. 48's petition, as amended during the hearing, is: [-1-] ____________________________________________________________________________________ 2 Captains 5 Sergeants 1 Detective 1 Drug Officer 1 Youth Services Officer Local No. 48 introduced one exhibit during the hearing, a document containing descriptions of the various duties performed by the police officers, which was removed from a larger document entitled "Waterville Police Department Standard Operating Procedures Manual." The City also introduced as an exhibit job descrip- tions for the various police officer positions, which were removed from a document entitled "Job Descriptions for City of Waterville." Shortly after commencement of the hearing, testimony by several witnesses es- tablished that one of the Captains serves as Deputy Chief of the Police Department, while the second Captain occupies the position of Captain of the Detective Division. At this juncture, Local No. 48 agreed and stipulated that the Captain who served as Deputy Chief should not be included in a bargaining unit because the Deputy Chief position implies a confidential relationship with the Chief of Police. Placed at issues then, are the job categories of "Captain of the Detective Division," "Sergeants," "Detective," "Drug Officer," and "Youth Services Officer." In determining appropriate bargaining units, the Maine Labor Relations Board's ("Board") task is to delineate only an appropriate unit; it is not required to select only the one unit which is the most appropriate or optimal unit. The Board in making a unit determination seeks an employee group which is united by a community of in- terest, and which neither embraces employees having substantial conflicts of interest nor omits employees sharing a unity of interest with other employees in the bargain- ing constituency. A hearing examiner's decision on unit determination matters thus typically invites a judgmental assessment of a number of relevant criteria. Among these relevant criteria are such factors as: (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 of 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. CAPTAIN OF THE DETECTIVE DIVISION and SERGEANTS The critical question concerning the Captain of the Detective Division position is whether the duties associated with this job category imply a confidential relation- ship with the Chief of Police or with any other City official responsible for opera- tion of the Police Department. It is the opinion of the hearing examiner that the Captain's duties do not imply the necessary confidential relationship, and that there is sufficient community of interest between the Captain's position and the Sergeant's position to require inclusion of both job categories in the same proposed bargaining unit. -2- ____________________________________________________________________________________ In ascertaining confidential employee status, the National Labor Relations Board has for many years held that the test is whether the job normally requires working in a confidential capacity with a person involved in the formulation, determination and effectuation of the employer's labor relations policies, e.g., Siemens Corp., 224 NLRB No. 216, 92 LRRM 1455 (1976). The Maine Labor Re- lations Board also applies this test in determining whether a confidential relation- ship exists, but may look as well to other factors which imply the existence or non-existence of a confidential relationship. To facilitate consideration of whether the Captain's duties imply the confidential relationship, and comparison of the relevant criteria associated with the job category "Captain of the Detec- tive Division" with those criteria related to the "Deputy Chief" and "Sergeant" positions, the following testimony was developed during hearing. According to the job description submitted as part of the City's exhibit, the Captain of the Detective Division (termed "Police Captain - Detective" in the job description) investigates criminal offenses and related police problems on a full- time basis, and is also responsible for the independent operation of the Detective Division of the Police Department. Examples therein of the type of work performed by the Captain include visiting the scenes of crimes, searching for evidence, investigating clues, searching for and apprehending violators, interviewing suspects and witnesses, making specialized vice investigations and raids, checking pawnshops for stolen property, appearing in court to present evidence and testimony, investigating com- plaints of bad checks, investigating reports of missing persons, maintaining sur- veillance over suspected criminals, and participating in the return of fugitives. The Captain is paid a salary of approximately $275.00 per week, and is directly responsible to the Chief of Police and the City's Director of Public Safety. The Captain works the day shift Monday through Friday and receives the same lunch and coffee breaks as other police employees. All police employees of the Waterville Police Department receive substantially identical employment benefits, including such matters as insurance coverage, sick leave, and vacation-time. All police employees are required to be graduates of the Criminal Justice Academy, except those employees who have been "grandfathered" through the requirement, and all of the employees spend most of their working hours within the city limits of Waterville. In contrast to the "field-work" responsibilities assigned to the Captain's position, the Deputy Chief is responsible to a much greater degree than the Captain for administrative duties which require close contact on a day-to-day basis with the Chief. The City's job description for the Deputy Chief's position (termed "Police Captain-Personnel" in the job description) states that the position entails responsible supervisory and administrative police work as well as responsi- bility for planning, supervising and reviewing the activities of the Patrol Divi- sion. Examples of the duties performed by the Deputy Chief, as outlined on the City's job description, include supervising the activities of the Patrol Division, relieving the Chief of a variety of administrative details, supervising and par- ticipating in specialized tasks in public and personnel relations, directing in- ternal investigations, conducting studies upon which important procedural and -3- ____________________________________________________________________________________ policy determinations are based, planning and supervising the activities of recordkeeping, building and equipment maintenance and repair, addressing public groups, preparing a classification of personnel procedures, rules and regulations, and performing the duties of Chief as directed. The Deputy Chief is paid a salary of approximately $285.00 per week and is directly responsible to the Chief of Police and the City's Director of Personnel. On the other hand, the duties performed in the field by the Captain are similar in some respects to the duties performed by Sergeants. The City's job description for the Sergeant's job category states that persons holding this posi- tion are responsible for assisting in the supervision of an assigned shift and for participating in the work performed by subordinate officers. Typical duties performed by Sergeants thus include supervising and participating in the searching and booking of persons arrested, dispatching police vehicles and personnel, patrol- ing the city observing, supervising and instructing subordinate officers, responding to major police and accident calls, assisting and instructing subordinate officers in investigations, advising and participating in the investigation of more difficult cases, and appearing in court as subpoenaed to present evidence. Most of the Sergeants receive a salary of approximately $250.00 per week, and are responsible to the Chief and the Deputy Chief. The Sergeants work one of three shifts per twenty-four hour period on a rotating basis. It thus appears that the Captain does not consistently perform the duties which would tend to establish the existence of the confidential relationship with the Chief or other City official required in 26 M.R.S.A. 962(6)(C). Significantly, the Captain does not, according to the City's job description, participate in specialized tasks in personnel relations or prepare classifications of personnel procedures, rules and regulations, these duties having been assigned to the Deputy Chief. The hearing examiner's conclusion that the Captain does not work in a confi- dential capacity with a person involved in the formulation, determination and effec- tuation of the Police Department's labor relations policies is reinforced by testi- mony by the Chief during the hearing. It was established through testimony during the hearing that the patrolmen employed by the Waterville Police Department formed a bargaining unit several years ago, and have since then negotiated several collective bargaining agreements with the City. The Chief testified that during these contract negotiations, he discussed the course of the negotiations with both the Deputy Chief and the Captain, but that he relied more heavily upon the Deputy Chief for frank discussion of the Chief's ideas about and impressions concerning the negotiations. Such reliance implies the existence of a confidential relationship with the Deputy Chief and the non-existence of such a relationship with the Captain. The facts, established by testimony at the hearing, that the Captain is paid nearly the same salary as the Deputy Chief and that the Captain is third in command in the Police Department, following the Chief and Deputy Chief, are not conclusive in establishing that the Captain's position entails a confidential relationship with -4- ____________________________________________________________________________________ the Chief. Neither is the fact that the Captain is responsible for the independent operation of the Detective Division significant as far as inclusion of the Captain's job category in a supervisory officers' bargaining unit is concerned, because there has been no claim that the Captain is a division head appointed to office for an unspecified term by the executive head or body of the public employer, as provided in 26 M.R.S.A. 962(6)(D). The hearing examiner also concludes that there is sufficient community of in- terest between the Captain and Sergeant job categories for inclusion of both positions in one proposed bargaining unit. This conclusion is based upon several considera- tions, including (1) both positions require supervision of police employees, (2) both positions involve field work, (3) the salary differential between the two posi- tions is not great, (4) both positions receive the same employment benefits, (5) both positions require graduation from the Criminal Justice Academy, (6) nearly all work done by employees holding these positions occurs within the City limits of Water- ville, and (7) there is frequent contact and interchange between employees holding the two positions. The community of interest between the two positions of Captain of the Detective Division and Sergeant make it appropriate to include them in one proposed bargaining unit of supervisory officers. SO ORDERED. YOUTH SERVICES OFFICER The City also contends that the Youth Services Officer position should not be included in a bargaining unit of supervisory officers because the position involves a confidential relationship with the Chief. The hearing examiner again is of the opinion that the duties associated with this position do not imply the necessary confidential relationship, and that there is sufficient community of interest to require inclusion of the position in a proposed bargaining unit composed of super- visory police officers. The City's job description for the Youth Services Officer position states that the position entails, among other things, commanding and coordinating the activities of the Youth Services Division, developing programs to aid in meeting the needs of youth offenders, working closely with the Detective Division to aid youth, and working directly with the City's youth. Examples of the type of work performed by the Youth Services Officer include supervising subordinate officers assigned to the Youth Services Division, planning and supervising the activities of the Division, conducting preliminary investigations when a youth becomes involved in the court system, working with private and public agencies to coordinate recreational activities, and interviewing parents and children. Testimony during the hearing showed that the Youth Services Officer receives an estimated salary of $300 per week and is paid on a "straight salary" basis. The Youth Services Officer works the day shift Monday through Friday and is "on call" during the weekend. The Youth Services Officer receives the same employment -5- ____________________________________________________________________________________ benefits as other police employees; is directly responsible to the Chief, the Director of Public Safety and the City Administrator; is required to be a graduate of the Maine Criminal Justice Academy, although the person presently holding the Youth Officer's position was "grandfathered" through that requirement; and has arrest powers. No testimony or evidence was introduced showing any confidential relationship between the Youth Services Officer and Chief regarding labor relations policies. It appears that the Youth Services Officer is responsible for the independent opera- tion of the Youth Services Division and that the main occasion for contact between the Youth Services Officer and the Chief occurs when the Youth Services Officer coordinates programs within the Police Department or with other City agencies. In light of these circumstances, the hearing examiner concludes that the Youth Services Officer does not work in a confidential capacity with a person involved in the formu- lation, determination and effectuation of the Police Department's labor relations policies. There also is sufficient community of interest between the Youth Services Officer's position and the Captain and Sergeant job categories to require that the Youth Services Officer position be included in the supervisory officers' proposed bargaining unit. The Youth Services Officer position requires supervision of police employees, involves field work, is accorded the same employment benefits as other police employee positions, requires graduation from the Criminal Justice Academy, and carries arrest powers with it. Although there is a fairly large salary differ- ential between the Youth Services Officer position and the Sergeant position, this factor by itself does not vitiate a substantial community of interest. Therefore, it is appropriate that the Youth Services Officer position be included in the super- visory officers' proposed bargaining unit. SO ORDERED. DETECTIVE and DRUG OFFICER Having ordered that the Captain of the Detective Division be included in the proposed bargaining unit composed of supervisory officers of the Police Department, the hearing examiner is faced with the question whether there is sufficient community of interest to justify inclusion of the Detective and Drug Officer positions in the bargaining unit. This question arises because testimony during the hearing showed that both the Detective and Drug Officer positions are assigned to the Detective Division, and that both employees receive their assignments from and are directly responsible to the Chief of Police and the Captain of the Detective Division. While 26 M.R.S.A. 966(1) speaks in terms of determining whether a supervisory position should be excluded from the proposed bargaining unit, the converse of the principle enunciated in 966 is equally valid; non-supervisory positions should be excluded from proposed bargaining units composed of supervisory positions. After careful consideration, the hearing examiner is of the opinion that inclusion of the Detective and Drug Officer positions in the supervisory officers' proposed bargaining unit would not be appropriate. -6- ____________________________________________________________________________________ The job description regarding the Detective's position submitted by Local No. 48 as an exhibit provides that the position entails, among other things, performing such investigative duties as assigned by superior officers and recommending ways of improving the effectiveness of the Detective Division to the commanding officer. The job description submitted by the City as an exhibit states that examples of the type of work performed by the Detective include visit- ing the scenes of crimes, searching for and preserving evidence, investigating clues, searching for and apprehending violators, interviewing and taking statements from suspects and witnesses, and appearing in court to present evidence and testify. As for the Drug Officer position, testimony during the hearing showed that this officer devotes approximately 1/2 day per week to drug related matters, approxi- mately two days per week serving as a court officer, and the remainder of the week to performing the same duties performed by the Detective. The Detective and Drug Officer are paid according to a four year step plan, at a salary ranging from $222.00 to $246.00 per week. Significantly, the written job descriptions submitted as exhibits and the tes- timony taken during hearing establish that neither the Detective or the Drug Officer consistently perform supervisory duties. One witness testified that both officers would on occasion supervise patrolmen assigned to an investigation being conducted by the Detective or Drug Officer, but such supervision occurs only in unusual cir- cumstances and is of temporary duration. For purposes of determining an appropriate bargaining unit, such lack of supervisory responsibility critically distinguishes the Detective and Drug Officer positions from the positions of Captain of the Detec- tive Division, Sergeant, and Youth Services Officer. Moreover, inclusion of the Detective and Drug Officer positions in the proposed supervisory officers' bargaining unit would create potential conflicts of interest with the Captain of the Detective Division which cannot be ignored. Testimony during the hearing showed that the Captain is responsible not only for scheduling, assigning, overseeing and reviewing the week of the Detective and Drug Officer, but also for adjusting grievances and applying personnel policies and procedures to these employees. In light of the superior/subordinate relationship between these three positions, it is not unreasonable to expect that conflicts of interest over collec- tive bargaining matters could easily arise if the proposed bargaining unit selects a bargaining agent and collective bargaining commences. The hearing examiner therefore concludes, in light of the lack of community of interest and the potential for conflict of interest, that inclusion of the Detective and Drug Officer positions in a proposed bargaining unit of supervisory officers would not be appropriate. SO ORDERED. Nothing in this report is intended to prejudice the right of the Detective or the Drug Officer to petition this Board for a separate bargaining unit composed of their job categories, or to petition for clarification of the existing patrolmen's -7- ____________________________________________________________________________________ bargaining unit as to whether that bargaining unit should include the Detective and Drug Officer job categories. Dated at Augusta, Maine, this 26th day of May, 1978. MAINE LABOR RELATIONS BOARD /s/____________________________________ Wayne W. Whitney, Jr., Hearing Examiner -8- ____________________________________________________________________________________