Town of Kennebunk and Teamsters, No. 83-A-01, affirming No. 82-UD-33 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 83-A-0l Issued: October 4, 1982 ______________________ ) TOWN OF KENNEBUNK ) ) and ) REPORT OF APPELLATE REVIEW OF ) UNIT DETERMINATION HEARING TEAMSTERS LOCAL UNION ) NO. 48 ) ______________________) This is an appeal pursuant to 26 M.R.S.A. Section 968(4) by the Town of Kenne- bunk (Town) of a unit determination report issued on September 1, 1982 by a Maine Labor Relations Board hearing examiner. The hearing examiner found in his report that the Lieutenant and Corporal positions in the Kennebunk Police Department con- stitute an appropriate supervisory unit for purposes of collective bargaining with- in the meaning of 26 M.R.S.A. Section 966, and accordingly granted the petition for unit determination filed by Teamsters Local Union No. 48 (Local 48). On appeal, the Town contends that the hearing examiner committed an error of law by failing to consider expressly in his report the supervisory criteria set forth in 26 M.R. S.A. Section 966(1). A hearing on the appeal was held on September 29, 1982, Alternate Chairman Donald W. Webber presiding, with Employer Representative Don R. Ziegenbein and Employee Representative Harold S. Noddin. The Town was represented by Roger S. Elliott, Esq., and Local 48 by Walter J. Stilphen. At the conclusion of the hearing the Town filed a legal memorandum, which has been considered by the Board. JURISDICTION The Town is a public employer as defined in 26 M.R.S.A. Section 962(7). Local 48 is a labor organization engaged in the business of organizing and repre- senting public employees for purposes of collective bargaining, within the mean- ing of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. (Act). The jurisdiction of the Maine Labor Relations Board to hear this case and rule on the Town's appeal lies in 26 M.R.S.A. Section 968(4). [-1-] __________________________________________________________________________________ FINDINGS OF FACT Upon review of the entire record, the Board adopts the following findings of fact: 1. Employed by the Kennebunk Police Department are a Lieutenant and two Corporals, all of whom are public employees who exercise supervisory responsi- bilities. 2. 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. 3. 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 functions. 4. 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. 5. 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 Kenne- bunk. 6. 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. 7. The Lieutenant and the Corporals have the same employment benefits, i.e., health insurance coverage, holidays, sick leave, vacation, bereavement leave, uni- form allowance, and Town-issued firearms. 8. 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. -2- __________________________________________________________________________________ 9. The Lieutenant and the Corporals have similar qualifications, skills and training in that all have attended the Maine Criminal Justice Academy and all compete with each other to attend other law enforcement-related educational programs. 10. 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. 11. 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. 12. The Lieutenant wishes to be represented by the petitioner Union for col- lective bargaining purposes, in the proposed bargaining unit. 13. 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 Local 48 and the Town, 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. 14. 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 or the Corporals. 15. 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. 16. Subsequent to issuance of the hearing examiner's report, the Executive Director's designee scheduled a representative election for the Lieutenant and Corporals on September 22, 1982. On September 16th the Town moved to stay the representation election pending adjudication of the Town's appeal of the hearing examiner's report. The Board denied the motion on September 17th, providing that -3- __________________________________________________________________________________ the election would proceed as scheduled but that all ballots cast would be se- questered until such time as the Board had ruled on the Town's appeal. The se- questered ballots currently are in the possession of the Executive Director. DECISION The hearing examiner examined in his report the criteria traditionally con- sidered in making community of interest determinations, and concluded that the Lieutenant and Corporals share a clear and identifiable community of interest. The Town has no quarrel with this determination or with any of the findings of fact made by the hearing examiner. Rather, the Town urges that the hearing examiner did not adequately consider the issue whether the Lieutenant should be placed in a separate bargaining unit by himself because he allegedly exercises supervisory responsibility over the Corporals. According to the Town, such con- sideration would have required the hearing examiner to consider expressly the supervisory criteria set forth in Section 966(1) of the Act. We dismiss the Town's appeal because the hearing examiner expressly found that the Lieutenant does not in fact act as the Corporals' supervisor, a finding which made any further consideration of the supervisory issue wholly irrelevant. In paragraph nos. 4, 5, and 6 of his findings of fact the hearing examiner found that although the Police Department's Duty Manual makes the Lieu- tenant the de jure supervisor of the Corporals, in practice the Lieutenant does not supervise the Corporals but rather all three employees report to and are under the direct supervision of the Chief of Police. The hearing examiner also found that each of the three employees serves as a shift supervisor, supervising the subordinate officers on their shifts, and that the three employees perform essentially the same job. None of these findings are contested by the Town. In short, despite what the Duty Manual might say, the hearing examiner properly refused to elevate form over substance and correctly looked to the duties and responsibilities in fact performed by the employees, as shown by the testimony and exhibits presented to him. See, e.g., AFSCME, Pine Tree Council No. 74 and City of Brewer at 4 (Feb. 1, 1979), affirmed, Case No. 79-A-01 (Oct. 17, 1979) ("It is the actual duties performed . . . that are crucial"). We conclude that since the hearing examiner found that the Lieutenant is not the Corporals' super- visor, there obviously was no reason for him to consider whether the Lieutenant -4- __________________________________________________________________________________ should be placed in a separate bargaining unit due to the supervisory criteria set forth in Section 966(1). The Town's claim of error therefore is meritless. We also note that the Town miscomprehends the purpose of the supervisory criteria contained in Section 966(1). These criteria are set forth in order to facilitate the formation of bargaining units composed entirely of super- visory personnel. The fact that some employees included in such a unit may supervise other employees also included in the unit is irrelevant; the point of the Section 966(1) criteria is to include all supervisors in the same unit, irrespective of whom these employees may supervise.[fn]1 Thus, even if the Lieuten- ant did supervise the Corporals, the only rational result would be to include all three supervisory positions in the same unit; it would be contrary to the intent of the Act and to our policy of "discouraging the proliferation of small bargaining units in a single department"[fn]2 to create two separate supervisory bargaining units in the Kennebunk Police Department. In sum, we conclude that the hearing examiner committed no error by including the Lieutenant and the Corporals in the same bargaining unit. We accordingly will affirm the hearing examiner's report and deny the Town's appeal. We will also order that the Executive Director or his designee open and count the sequestered ballots and certify the results of the September 22, 1982 representation election within seven (7) working days of the date of this decision. The Executive Direc- tor or his designee shall give advance notice to the parties of the time, date and place at which he will open and count the ballots, so that the parties may have their election observers present at the opening of the ballots if they so choose. __________ 1/ We specifically reject any suggestion to the contrary which might be read into the hearing examiner's report in Command Officers, South Portland Police De- partment and City of South Portland (Dec. 21, 1972), a report on which the Town relies in the present case. 2/ Town of Yarmouth and Teamsters Local 48, Case No. 80-A-04 at 4 (June 16, 1980). We note that hearing examiners occasionally include supervisory positions in rank-and-file bargaining units when only one or two supervisory positions are at issue and when formation of a supervisory bargaining unit would unduly fragment the department. See, e.g., Calais Education Association and Alexan- der School Committee (Feb. 4, 1982). Such an exercise of a hearing examiner's informed discretion is entirely consistent with the requirements of Section 966(1) and with our policy of avoiding fragmentation of bargaining units. -5- __________________________________________________________________________________ ORDER On the basis of the foregoing findings of fact and decision and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. Section 968(4), it is ORDERED: 1. The September 1, 1982 unit determination report in this matter is affirmed. The Police Supervisors bargaining unit at the Kennebunk Police Department is composed of the Lieutenant and Corporal job classifications. 2. The Town's appeal is denied. 3. The Executive Director or his designee shall open and count the sequestered ballots and certify the results of the September 22, 1982 representation election within seven (7) working days of the date of this Order. The Executive Director or his designee shall give advance notice to the parties of the time, date and place at which he will open and count the ballots. Dated at Augusta, Maine, this 4th day of October, 1982. MAINE LABOR RELATIONS BOARD /s/_________________________________________ Donald W. Webber, Alternate Chairman /s/_________________________________________ Don R. Ziegenbein, Employer Representative /s/_________________________________________ Harold S. Noddin, Employee Representative -6- __________________________________________________________________________________