Teamsters and Town of Kennebunk, No. 82-UD-33, Affirmed 83-A-01 (MLRB Oct. 4, 1982)
      



                                                                        
STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                     [Case No. 82-UD-33]
                                                     [Issued:  September 1, 1982]
_____________________________               
                             )
TEAMSTERS LOCAL UNION NO. 48 )
                             )
  and                        )                UNIT DETERMINATION REPORT
                             )
TOWN OF KENNEBUNK            )
_____________________________)

     This unit determination proceeding was initiated on June 10, 1982 when
Teamsters Local Union No. 48 filed a petition for appropriate bargaining unit
determination, pursuant to Title 26 M.R.S.A. Section 966.  A hearing on the
petition was conducted by the undersigned hearing examiner for the Maine Labor
Relations Board on August 25, 1982 at the Bureau of Labor Standards Conference
Room, seventh floor, State Office Building, Augusta, Maine.  Teamsters Local
Union No. 48 ("Union") was represented by its secretary-treasurer Walter J.
Stilphen, Jr., who was assisted at the hearing by Union business agent David L.
Berg.  The Town of Kennebunk ("Employer") was represented by labor relations
consultant Robert D. Curley.

     Through its petition, the Union seeks formation of a police supervisors
bargaining unit composed of the Lieutenant and Corporal job classifications at
the Kennebunk Police Department.  The Employer opposes including the Lieutenant
in the proposed bargaining unit on the grounds that the Lieutenant, although a
public employee and entitled to collective bargaining representation, exercises
supervisory authority over the Corporals and lacks a community of interest with
them and, therefore, should be in a separate bargaining unit.

     The Union presented Michael A. LeBlanc, Lieutenant of the Kennebunk Police
Department, and Robert R. Reinertsen, Chief of Police (formerly) of Kennebunk
Police Department as witnesses at the hearing.  The Employer presented no wit-
nesses.

     The following exhibits were admitted into the record:

    Petitioner's Exh. No. 1         	  Kennebunk Police Department, Officer's
                                          Daily Activity Report for Corporal
                                          Berdeen, Period from 2/2/82, through
                                          2/24/82 (12 Pp.)

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     Petitioner's Exh. No. 2              Kennebunk Police Department, Officer's 
                                          Daily Activity Report for Lieutenant 
                                          LeBlanc, Period from 2/1/82 through   
                                          2/27/82 (19 Pp.)                               
                                                           
     Petitioner's Exh. No. 3              Kennebunk Police Department, Officer's 
                                          Daily Activity Report for Lieutenant  
                                          LeBlanc, Period from 8/1/79 through   
                                          8/23/79 (14 Pp.)                           
                                                                
     Petitioner's Exh. No. 4              Kennebunk Police Department, Vacation  
                                          Replacement Schedule, Periods from    
                                          8/25/81 through 9/11/81, 10/6/81 through  										  1/5/82, and 12/24/81 through 1/11/82 
                                                (4 Pp.)                         
                                                                                                   
     Petitioner's Exh. No. 5              Kennebunk Police Department, Shift Ro- 
                                          tation Schedule, Period from 8/15/81 
                                          through 9/18/82 (18 Pp.)   

     Respondent's Exh. No. 1              Collective Bargaining Agreement Between 
                                          the Town of Kennebunk and Teamsters Local
                       		      	  Union No. 48 for Police Patrol Officers 
				  	  and Communications Controllers Unit;
					  April 1, 1982 to March 31, 1984            
                                                            
     Board Exh. No. 1                     Kennebunk Police Department, Rules and
                                          Regulations Duty Manual (1980)    
                                        
                                
                                    JURISDICTION      
                                      
     The Union is a labor organization engaged in the business of organizing and
representing public employees for purposes of collective bargaining, within the
meaning of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.RS.A.
Section 961, et seq.  The Town of Kennebunk is a public employer as defined in
26 M.R.S.A. Section 962(7).  The jurisdiction of the hearing examiner to hear this
matter and to make an appropriate unit determination lies in 26 M.R.S.A. Section
966(1).


                              FINDINGS OF FACT
      
     Upon review of the entire record, the hearing examiner finds:

     1.  The Town of Kennebunk is the public employer, as that term is defined in     
26 M.R.S.A. Section 962(7), of the supervisory employees of the Kennebunk Police

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Department.

     2.  The supervisory employees of the Kennebunk Police Department, the Lieuten-
ant and the Corporals, are public employees, within the ambit of Section 962(6) of
the Act.

     3.  Teamsters Local Union No. 48, the petitioner herein, is a bargaining agent,
within the definition of 26 M.R.S.A. Section 962(2).

     4.  Although the Lieutenant is, under the provisions of the Kennebunk Police
Department's Rules and Regulations Duty Manual, the de jure supervisor over the
Corporals, in fact, however, the Lieutenant and the Corporals perform the same work
for the Kennebunk Police Department.

     5.  The Lieutenant and the Corporals each serve as a shift supervisor for the
Kennebunk Police Department and, as such, supervise subordinate officers on their
shifts, in addition to performing motorized patrol and investigative police func-
tions.

     6.  Although, under the chain-of-command, the Corporals should report to and
be under the supervision of the Lieutenant, the Corporals and the Lieutenant have,
in the past, usually all reported to and been under the direct supervision of the
Kennebunk Chief of Police.

     7.  The labor-relations policy for the Lieutenant and the Corporals is set by
the Selectmen, the Town Manager, and the Chief of Police of the Town of Kennebunk.

     8.  The scale and manner of determining the earnings of the Lieutenant and
the Corporals is similar, except that the Lieutenant is paid Fifty Cents additional
per hour, over the Corporals' rate of pay, reflecting the Lieutenant's higher rank
and his greater experience with the Department.

     9.  The Lieutenant and the Corporals have the same employment benefits, i.e.,
health insurance coverage, holidays, sick leave, vacation, bereavement leave,
uniform allowance, and Employer-issued firearms.

    10.  The Lieutenant and the Corporals have the same hours of work in that each
works on eight hour shifts, five days per week, and the shift assignments change on
a rotating basis.

    11.  The Lieutenant and the Corporals have similar qualifications, skills and
training in that all have attended the Maine Criminal Justice Academy and all com-
pete with each other to attend other law enforcement related educational programs.

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    12.  The Lieutenant and the Corporals see each other, on a daily basis, as
one relieves the other, in the capacity of shift supervisor.  When the Kennebunk
Police Department had a full-time Police Chief (the Police Chief's position is
presently vacant), the Lieutenant and the Corporals met with the Chief once per
week for a supervisors' meeting.

    13.  All three supervisors, the Lieutenant and the two Corporals, operate
out of the same police station, all work in a marked police cruiser, and share
a desk at the Kennebunk Police Department.

    14.  The Lieutenant wishes to be represented by the petitioner Union for
collective bargaining purposes, in the proposed bargaining unit.

    15.  Under the established Kennebunk Police Department grievance procedure,
the Lieutenant and the Corporals, as shift supervisors, have all processed griev-
ances, from subordinate employees, as the first step of said procedure.  Although
permitted by the collective bargaining agreement, between the Union and the Em-
ployer, for patrol and communications officers, neither the Lieutenant nor the
Corporals have ever been delegated the responsibility of replacing the Chief at
the Chief's step of the grievance procedure, for the subordinate police officers.

    16.  The Lieutenant and the Corporals have all, in the course of their super-
visory duties, recommended that discipline be taken against subordinate police
officers.  The final decision, concerning discipline, is not made by either the
Lieutenant nor the Corporals.

    17.  The administrative duties in the Kennebunk Police Department are shared
equally by the Lieutenant and each Corporal. For example, each has made the shift
assignments for all officers, on a rotating basis.


                                   DECISION

     The Employer herein readily concedes that the Lieutenant and the Corporals are
all public employees, however, it contends that the Lieutenant, as the Corporals'
immediate supervisor, lacks a sufficient community of interest with them to be in-
cluded in the same bargaining unit with the Corporals. The Employer suggests that
an appropriate resolution herein would be the creation of two separate bargaining
units:  one for the Lieutenant and one for the Corporals.  The Maine Labor Relations 
Board has set forth eleven criteria for evaluating the presence or absence of com-
munity of interest. Said factors were:

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          "(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 earn-
          ings; (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 bargain-
          ing; (9) desires of the affected employees; (10) extent of
          union organization; and (11) the public employer's organiza-
          tional structure."

 Council 74, AFSCME and City of Brewer, M.L.R.B. No. 79-A-01, pp. 3-4 (10/17/79).
      
     At the hearing, the Union's witnesses offered testimony of facts relevant
to nine of the above factors.  Only factors numbered 8 and 10 were not mentioned.
Of the nine factors which were covered in the testimony, the uncontroverted evi-
dence is that all of the wages, hours, and terms and conditions of employment
of the Lieutenant are similar to, if not identical with, those of the Corporals.
The said identities or similarities are noted in paragraphs numbered 4 through
14 of the foregoing findings of fact.  The Employer apparently conceded the
identity and/or similarity between the Lieutenant and Corporal positions at the
hearing.  In his closing argument, the Employer's representative stated that a
rationale was needed for the established hierarchy and that everything he heard
at the hearing indicated that the Lieutenant and the Corporals were performing
the same work.

     In the opinion of the undersigned hearing examiner, the facts in this case
establish a clear and identifiable community of interest between the Lieutenant
and Corporal positions in the Kennebunk Police Department.  Both of said positions
should be placed in the same bargaining unit for collective bargaining purposes.


                                    ORDER
      
     On the basis of the foregoing findings of fact and discussion and by virtue
of and pursuant to the provisions of 26 M.R.S.A. Section 966, the hearing examiner
ORDERS:

          1.  That the Petition for Appropriate Unit Determination,
              filed by Teamsters Local Union No. 48 on June 10, 1982,
              and seeking formation of a supervisory officers bargaining
              unit for the Kennebunk Police Department be and hereby
              is granted.

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          2.  The Lieutenant and Corporal positions within the
              Kennebunk Police Department together constitute an
              appropriate unit for collective bargaining purposes.

Dated at Augusta, Maine, this 1st day of September, 1982
      


                                      MAINE LABOR RELATIONS BOARD

      
      
                                      /s/_________________________
                                      Marc P. Ayotte
                                      Hearing Examiner
      










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