STATE OF MAINE MAINE LABOR RELATIONS BOARD
No. 90-UC-04
Issued: April 2, 1990
__________________________________
)
TEAMSTERS UNION LOCAL 340, )
)
Petitioner, )
)
and ) UNIT CLARIFICATION REPORT
)
CITY OF BIDDEFORD, )
)
Public Employer. )
__________________________________)
This unit clarification matter was initiated on December 26, 1989,
when Teamsters Union Local 340 (Teamsters) filed a unit clarification peti-
tion pursuant to 26 M.R.S.A. 966(3) (1988) and Board Unit Determination
Rule 1.13. The Teamsters' petition requests that the City of Biddeford
(Biddeford) Detectives and/or Juvenile Officers bargaining unit, presently
represented for the purposes of collective bargaining by the Teamsters, be
clarified to include Sergeant Robert Devou, who allegedly was "transferred
to the Detectives Division" after his position in the Biddeford Sergeants
and Corporals bargaining unit "was abolished and given out to other
officers." In support of the requested clarification, the Teamsters allege
that Devou was transferred to the Detective Division of the Biddeford
Police Department on October 2, 1989, after his previous job of
Administrative Sergeant was abolished. The Teamsters also allege that when
Devou was transferred to the Detective Division his duties changed substan-
tially. More specifically, the Teamsters allege that after the reassign-
ment Devou no longer supervised other employees although his sergeant rank
remained intact. The Teamsters also allege that Devou now performs work
identical to that of other Detectives.
The City contends that Devou has no community of interest with the
Detectives unit. The City alleges that although Devou was reassigned, his
duties continue to include supervisory and other functions not inter-
changeable with those of Patrolmen. The City contends that Detectives are
really Patrolmen assigned to detective duties without formal examination,
whereas Detective Devou is a Sergeant, a higher-payment position into which
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Patrolmen are promoted by examination.
A notice to employees of the unit clarification hearing, with instruc-
tions, was issued for posting purposes to the City on January 22, 1990.
The City posted the notices as directed. The Teamsters are represented in
this proceeding by Teamsters' Business Agent Carl Guignard. The City of
Biddeford is represented in this matter by its Solicitor, Erland Hardy.
At the February 5, 1990 evidentiary hearing, conducted at the Board's
offices at Augusta, Maine, the parties were afforded the opportunity to
present evidence and argument and the opportunity to cross-examine wit-
nesses. The City's Solicitor was provided, at hearing, with both a copy of
the Board's Rules and Procedures and a list of the eleven long-established
factors employed by the Board in resolving disputes concerning community of
interest. The Teamsters elicited testimony from Sergeant Devou. Biddeford
elicited the testimony of Police Chief Roger Beaupre. The following docu-
ments were marked for identification as indicated:
Employer Exhibit No. 1, the parties' 74-page collective
bargaining agreement effective July 1, 1989 through June 30,
1992.
Employer Exhibit No. 2, the one-page Police Sergeant job
description.
Employer Exhibit No. 3, the one-page Police Detective job
description.
Employer Exhibit No. 4, a two-page October 13, 1989, memorandum
to Captain Gaudette from Chief R. P. Beaupre.
Employer Exhibit No. 5, a one-page Staff Support Director job
description.
Employer Exhibit No. 6, the four-page General Order numbered
102-89.
Employer Composite Exhibit No. 7, comprised of two one-page
documents, respectively, an October 6, 1989 grievance report
filed for Robert Devou by Detective Division Steward Detective
R. Gagne, and a February 2, 1990 memorandum of agreement,
signed by Carl Guignard and Mayor Bonita P. Belanger.
Union Exhibit No. 1, MLRB Forms 1 and 3, separate one-page
agreement on appropriate unit and voluntary recognition forms,
which establish the Detectives and/or Juvenile Officers
bargaining unit.
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Employer Exhibits 1 through 3, 5 through 7, and Union Exhibit 1 were
admitted on the parties' joint stipulation of admissibility. Employer
Exhibit No. 4 is hereby admitted. The factual record was closed upon
receipt of Employer Exhibit No. 7, on February 7, 1990. The transcript of
the proceeding was completed on February 9, 1990. Both parties filed
posthearing submissions, the last of which was received March 7, 1990.
Neither party requested a copy of the transcript. No other person or
entity requested to participate in this proceeding on the basis that its
substantial interests might be affected by the final order herein.
The City's motion for directed verdict is hereby denied and the
Teamsters' objection to evidence of bargaining proposals is hereby
overruled.
JURISDICTION
The undersigned Hearing Examiner's jurisdiction to conduct a unit
clarification hearing herein and to issue a report thereof lies in
26 M.R.S.A. 966(3) (1988). Neither party has objected to the jurisdic-
tion of the Hearing Examiner.
STIPULATIONS
In off-the-record discussion prior to the hearing the parties reached
the following stipulations:
1. The City of Biddeford is a public employer within the meaning
of 26 M.R.S.A. 962(7) (Supp. 1989).
2. Teamsters Local Union 340 is the bargaining agent, within the
meaning of 26 M.R.S.A. 962(2) (1988), of units of the City
of Biddeford's Patrolman, Corporal/Sergeant, Secretary/
Dispatcher, Detective/Juvenile Officer and Captain employees.
3. Robert Devou is a public employee of the City of Biddeford
within the meaning of 26 M.R.S.A. 962(6) (1988).
FINDINGS OF FACT
On August 11, 1978, a Board Hearing Examiner issued a unit deter-
mination report in which he found appropriate a bargaining unit composed of
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Commanders of the Biddeford Police Department Staff Support and Operations
Bureaus. As a result of a secret ballot bargaining agent election con-
ducted on September 14, 1978, these two Bureau Commanders, holding the rank
of Captain, voted in favor of representation for the purposes of collective
bargaining by the Teamsters. The job description submitted in that case to
establish the duties of the Staff Support Bureau Commander (SSBC) states
that the SSBC is responsible for the full-time supervision of the
Detectives and Records Divisions as well as supervision of the Youth Aid
Officer in the handling and processing of juveniles. The SSBC was also
found responsible for the assignment of Detectives to both cases and
shifts. The Police Detective job description submitted in the instant case
states that "[a]ssignments are received from the Bureau Commander, who
reviews work by conference and progress reports." The Staff Support
Director job description states that the occupant "supervises the Detective
and Juvenile Divisions in the absence of the Staff Support Bureau
Commander."
On June 26, 1984, the parties executed an Agreement on Appropriate
Bargaining Unit (MLRB Form 1) memorializing both their agreement "to sever
[an] existing bargaining unit [at that time comprised of "Full-Time
Sergeants, Corporals and Patrolmen of the City of Biddeford Police
Department," see September 14, 1978 certification] into two units," and
their further agreement that "[t]he first unit [would] be patrol and other
job classifications contained in the original unit [and that t]he second
unit [would] be the newly created unit of sergeants and corporals."
The parties' May 19, 1988 Agreement on Appropriate Bargaining Unit
(MLRB Form 3), filed July 27, 1988, memorializes the parties' agreement on
the appropriateness of a bargaining unit composed of "Police Detectives
and/or Juvenile Officers." The description does not further specify ranks
of Detectives contemplated to be included or excluded.
On August 16, 1988, the parties filed an MLRB Form 1 with the Board
memorializing their July 28, 1988 Agreement on Appropriate Bargaining Unit,
which establishes the following unit description:
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INCLUDED: Patrolmen
EXCLUDED: Detectives, Juvenile Officers, Captains, Corporals
and Sergeants.
Robert Devou has served with the Biddeford Police Department for
twenty-two years and as a Sergeant since 1976. He has served four years as
a Patrol Sergeant and nine as an Administrative Sergeant. The promotion
evaluation process used at the time Devou made Sergeant did not include a
written test requirement, although it does now for promotion to both Cor-
poral and Sergeant. Transfer to the Detective Division does not require a
written examination. When the department abolished the position of
Administrative Sergeant, Devou was involuntarily transferred to the
Detective Division (Division) on October 2, 1989, and was required to per-
form Detective duties. At the Division Devou was assigned the same
workload as the two other Detectives, Richard Gagne and Joseph Plante.
Devou's work with the Division includes investigating cases, interviewing
witnesses, taking photographs and fingerprints and supervising scenes as
assigned by Captain Gaudette. Devou works the hours of eight to four and
is, additionally, on call for after-hours calls every two weeks, on rota-
tion with the other two Detectives.
Chief Beaupre has in the past opposed putting Sergeants into the
Detective Division and as a result of the Police Commission's appointment
of Devou to the Division, Beaupre decided to outline for Captain Norman
Gaudette Beaupre's expectations regarding the nature of Devou's future job
duties within the Detective Division. Beaupre intended for Gaudette to
implement the changed duties. Gaudette told Devou that there would be
changes in his job duties, none of which have actually occurred. Devou
expected to receive a new job description but none was ever given to him.
When Gaudette permitted Devou to read Beaupre's rough written description
of the anticipated changes in his duties, Devou disagreed with the changes,
stating that "if [he were] assigning cases and working as a detective there
would be a conflict of interest and [he] would have some problems with the
other men." Gaudette has made Detective case assignments since approximately
one week after those duties were unsuccessfully attempted to be assigned to
Devou. Devou also objected to the proposed loss of Christmas as a holiday
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which would have resulted from the change.
The City proffered at hearing a Staff Support Director job description
which, Beaupre testified, was to be the job description applicable to the
position Devou now occupies within the Division. No Staff Support Director
position has previously existed within the Division. The Commission had
not at the time of hearing adopted a Staff Support Director's job descrip-
tion. The job description of the Staff Support Director classification
indicates duties that are different from those performed by Detectives.
Devou has not performed as a Staff Support Director. The most significant
difference between Devou's present duties and those of the Staff Support
Director is supervisory responsibility. Devou had not seen the Staff
Support Director job description before the date of hearing and has never
been told that the full range of duties set forth therein are his.
Although as a general rule a description of new department positions being
developed or vacancies being filled would be advertised, the Staff Support
Director position never has been. Job descriptions exist for the positions
of Police Sergeant and Police Detective. There is no evidence that
employees occupying position titles corresponding to the classifications
for which job descriptions exist do or do not actually perform the duties
listed on the respective job descriptions. No Administrative Sergeant or
Detective Sergeant job descriptions were alleged or established.
By General Order 102-89, promulgated March 2, 1989, the City
established an intradepartmental promotion procedure for the positions of
Corporal, Sergeant and Captain to replace that outlined in a previous
General Order dated March 1, 1982. That policy requires that the Police
Commission first authorize the filling of any vacant position among the
applicable classifications. The policy provides generally for posting of
written notice, the requirement of written request for consideration, writ-
ten examination, Oral Board interview, written supervisory evaluation, con-
sideration of seniority and selection by the Chief from among the top three
candidates. The procedure further requires psychological evaluation and a
recommendation by the Chief to the Police Commission for final confirmation.
The policy also provides for a 90-day probationary period.
Devou's office work area is a desk located next to the desks of the
other Division employees. Devou's work attire consists of plain clothes
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now; he was uniformed before. The on-duty Patrol Sergeant has one desk, a
typewriter, a filing system and a computer to assist him in the performance
of his supervisory functions. Devou hasn't access to any such private
equipment or resources solely for his use. Patrol Sergeant Jean P. Mann
wears a uniform. Morin works on check cases, classifies finger-prints, and
maintains an evidence room. He also performs firearm instruction. With
the exception of check cases, no Detective performs the duties that Morin
performs. Morin never performs investigative duties on felony cases. At
the time Devou was transferred to the Division, Morin assigned cases to
Detectives.
Devou's vacation schedule is presently planned to be coordinated with
that of Captain Gaudette rather than that of other Detectives. No other
Sergeant's vacation is coordinated with respect to that of Gaudette. Devou's
wage rate is presently "established in the Corporal/Sergeant unit portion
of the collective bargaining contract provisions on wages, and . . . is
different from the wage established for Detectives."
In the past, with the exception of one person, Detectives automati-
cally had all contractual holidays off. Presently, due to a side-bar
agreement between the Association and the City, reached as a result of the
filing of a grievance by Devou through the Detective Unit steward,
Detectives work all holidays except Christmas, New Year's and Thanksgiving
day. Presently Devou competes, on the basis of seniority, with two other
Detectives respecting the first two weeks of vacation leave. Devou
discussed the grievance with the other Detectives and they all agreed upon
it. Presently Detectives are paid at the Corporals wage rate when they are
performing Detective duties and as Patrolmen when they are not.
Negotiations over the present collective bargaining agreement ended on
approximately November 14, the City enacted its approval on November 21 and
the agreement was signed by both parties on December 6, 1989. Although the
Teamsters knew that Devou was being placed in the Detectives Unit and
although they knew he was performing Detective duties, the Teamsters did
not raise the issue of his unit placement prior to the conclusion of nego-
tiations which formed the basis of the present collective bargaining
agreement. The Teamsters had heard that Devou was to be made a supervisor.
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DISCUSSION
As is more fully explained below, I find that Devou's transfer to the
Detective Division is an insufficient basis, in light of his changed
duties, for modificiation of the description of the Detectives and/or
Juvenile Officers collective bargaining unit. Additionally, I conclude
that Devou shares a community of interest with Detectives which is not out-
weighed by a supervisory conflict of interest.
Devou was transferred to the Detective Division on October 2, 1989.
He was shown a writing addressed to Gaudette from Beaupre during the week
of October 9, 1989, which indicated that he would receive a new job
description.[fn]1 Devou objected to the anticipated duties which he was
informed the new, and at that time unfinished, description would establish
and Gaudette indicated he would talk to Beaupre about Devou's objections.
In a week or two Sergeant Morin's case assignment duties were taken over by
Captain Gaudette. In the five-month period between his transfer and the
hearing, Devou had not seen the Staff Support Director job description
nor was any other job description advanced as describing his duties. Prior
to hearing, Devou had not been informed in any other manner that he should
be performing the significantly different duties which the Staff Support
Director job description describes. Devou's duties have not changed from
the normal rank-and-file Detective duties which he assumed on his transfer
to the Division in October of 1989.
The evidence establishes that "the [Police C]ommission decided to
abolish the job that Sergeant Devou was performing and decided to put him
into the detective unit."[fn]2 The record does not contain more detailed evi-
__________________
1 Although Chief Beaupre's rough description to Gaudette of Devou's
anticipated new duties in the Detective Division is dated October 13, 1989,
the last sentence refers to the Chief promulgating a more formal job
description on returning from vacation on August 22. No explanation of
this inconsistency exists in the record. The rough description indicates
an intention that Devou's duties include case assignment duties previously
performed by Sergeant Morin, supervision of the Detective Division's
employees and assumption of command in Gaudette's absence.
2 There is no evidence of the existence of a Detective Sergeant posi-
tion either at the time of hearing or at the time of the parties'
establishment of the Sergeant and Corporals' bargaining unit.
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dence of what the Police Commission contemplated that Devou's Detective
Division rank or duties would be after the transfer. The record does not
establish that Devou continues to perform Patrol or Administrative Sergeant
duties or that he has assumed duties within the Division significantly
different from those of other rank-and-file Detectives.[fn]3
When asked whether the Staff Support Director job description indi-
cates the creation of a new position or whether it describes Devou's func-
tions in the Detective Division, Beaupre testified that "[i]t establishes
a new job within the [D]ivision, yes." The record does not establish that
the customary posting procedures regarding the establishment or filling of
new positions has been observed with respect to the position of Staff
Support Director. There is no evidence that the Police Commission has
approved a Staff Support Supervisor job description or approved the filling
of either a Detective Sergeant or Staff Support Supervisor position.
Furthermore, no such positions have been posted as required by the City's
most recent General Order concerning promotions. Although it may have been
the Chief's intention that Devou assume supervisory duties with respect to
the Detective Division, no such duties had been performed by Devou at the
time of hearing. Finally, the grievance filed by Devou and actioned by the
City states on its face that it was filed by Devou through his steward,
Detective R. Gagne.
There is no evidence that the City notified the Teamsters that Devou's
transfer was in the offing or that his transfer to the Division would
result in curtailed, continued or increased supervisory duties. There is
also no evidence that the City notified the Teamsters whether, as a result
of the transfer, Devou would occupy the position of Police Sergeant,
___________________
3 The Police Sergeant job description does not refer to supervision of
Detectives as being a component of the position. The Police Sergeant's job
description does refer to responsibility for supervising crime investiga-
tion activities. However, the Police Detective job description refers to
Detectives "continuing the crime investigation[s] initiated by the Patrol
Division." In light of these facts it is reasonable to conclude that the
Police Sergeant job description does not include responsibility for the
supervision of Detectives. There is no evidence that Devou presently
discharges any residual supervisory duties with respect to Patrolmen.
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Detective Sergeant, Patrolman or Corporal rank Detective, or Staff Support
Director. There is no evidence that prior to contract execution on
December 6, 1989, the City disputed Devou's inclusion in the Detectives
and/or Juvenile Officers bargaining unit. Neither is there record evidence
that the City advanced or that the Teamsters disputed any contention that
Devou, although apparently transferred to the Detective unit by the Police
Commission, continued to be represented for the purposes of collective
bargaining in the bargaining unit in which he was included prior to the
dissolution of his Administrative Police Sergeant position. There is no
evidence that the Teamsters disputed Devou's transfer to the Detective
Division and no evidence that the Teamsters requested or that the City
refused bargaining respecting the transfer itself or any negotiable impact
arising therefrom.
The Municipal Public Employees Labor Relations Law (MPELRL) provides
that "[i]n the event of a dispute between the public employer and an
employee or employees as to whether a supervisory or other position is
included in the bargaining unit, the executive director or [the executive
director's] designee shall make the determination." See 26 M.R.S.A.
966(1) (1988). Section 966(3) provides that unit clarification petitions
seeking to alter the description of a collective bargaining unit may be
filed "where the circumstances surrounding the formation of an existing
bargaining unit are alleged to have changed sufficiently to warrant modifi-
cation . . . provided that the parties are unable to agree on appropriate
modifications." The Board has interpreted these provisions of the MPELRL
to express a preference that matters of unit placement be undertaken ini-
tially by the parties. Accordingly, the Board's Unit Determination Rules
allow Board hearing examiners discretion to dismiss unit clarification
petitions where such petitions attempt "to modify the composition of the
bargaining unit as negotiated by the parties and the alleged changes
therein have been made prior to negotiations on the collective bargaining
agreement presently in force." See Board Unit Determination Rule 1.13(A)(c).
The primary purpose underlying Rule 1.13(A)(c) is the prevention of
the unnecessary opening of contracts, mid term, to accommodate negotiations
over the wages, hours, terms and conditions of employment of positions
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which were substantially changed or newly created prior to the conclusion
of a collective bargaining agreement then in effect. Rule 1.13(A)(c)
establishes a target deadline for the raising of such placement matters so
that the parties are afforded the opportunity to settle, for the impending
contract's term, the wages, hours and terms and conditions of employment of
all existing positions appropriately included in the collective bargaining
unit. The critical date in cases where the timeliness provisions of
Rule 1.13(A)(c) are invoked is the date of the filing of the petition.
Although Devou was transferred to the Division prior to the conclusion
of the existing contract, I find that the petition does not attempt to
modify the composition of the bargaining unit. The record establishes that
although Devou's duties were substantially changed, the duties which he has
performed since being transferred to the Division are identical to those of
the Detectives already included in the Detectives and/or Juvenile Officers
unit. The Detectives and/or Juvenile Officers bargaining unit description
is, on its face, broad enough to include the position presently occupied by
Devou. See Board Unit Determination Rule 1.13(A)(a). Accordingly, I find
that the petition may be dismissed for failure to seek modification of the
unit description based upon sufficiently changed circumstances.
Although I have determined that the Detective unit's description need
not be modified, the statutorily mandated resolution of Devou's appropriate
unit placement still remains. As is more fully explained below, I conclude
that Devou is appropriately included in the Detectives and/or Juvenile
Officers collective bargaining unit.
The first question in resolving Devou's unit placement is whether
Devou shares a sufficient community of interest with members of the
existing Detectives and/or Juvenile Officers unit to be included therein.
The pertinent portions of the MPELRL provide "that there must be a 'clear
and identifiable community of interest among the employees concerned' for a
given bargaining unit to be appropriate for the purposes of collective
bargaining." Penobscot Valley Hospital and Maine Federation of Nurses and
Health Care Professionals, No. 85-A-01, slip op. at 4 (Me.L.R.B. Feb. 6,
1985). See 26 M.R.S.A. 966(2) (1988). The Board has established eleven
criteria to be used in determining the presence or absence of a community of
interest among employees. Town of Lebanon and Teamsters Local Union No. 48,
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No. 86-A-01 (Me.L.R.B. Dec. 5, 1985). Those factors are:
(1) similarity in the kind of work performed; (2) common super-
vision and determination of labor-relations policy; (3) simi-
larity 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 qualifica-
tions, 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; and (11) the public
employer's organization structure.
Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at 3-4
(Me.L.R.B. Oct. 17, 1979); cited with approval in, Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care Professionals,
No. 85-A-01, slip op. at 4 (Me.L.R.B. Feb. 6, 1985), and, Council 74,
AFSCME and Teamsters Local Union No. 48 and County of Cumberland,
No. 84-A-04, slip op. at 11 (Me.L.R.B. Apr. 25, 1984).
All of the unit descriptions pertinent to the resolution of issues in
this case were established by voluntary agreement of the parties. There
is, therefore, no previously existing sufficient factual basis for
measuring the community of interest among employees in those units or for
measuring the degree to which Devou shares any such community of interest.
Accordingly, I am required to employ the facts related to community of
interest found in the record of this case, alone, to determine whether
Devou shares a greater community of interest with employees in the
Sergeants and Corporals unit or employees in the Detectives and/or Juvenile
Officers unit. On that basis I conclude that Devou presently shares a
greater community of interest with Detectives. There is absolutely no evi-
dence with regard to Corporals or Juvenile Officers.
Devou performs work identical to other Detectives. There is no direct
evidence regarding the supervision of Sergeants, Corporals or Detectives.
Inexplicably, Devou is presently paid a Sergeant's wages. The hourly wage
of a Sergeant is presently $13.06 whereas the hourly wage of both Corporals
and Detectives is $11.34. There is no evidence establishing what propor-
tion of the work hours of Detective Division employees is paid at the
$11.01 hourly rate of Patrolmen. The parties have, with the exception of
wages, pointed out no real difference, established by contract or other-
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wise, with respect to employment benefits, hours of work or other terms and
conditions of employment among Sergeants, Corporals, Detectives and
Juvenile Officers. No disparity in the skills, training and qualifications
between those possessed by Devou and employees in either of the two units
is established. Performance of supervisory duties by Police Sergeants
supervising Patrolmen engaged in police patrol and the respective differences
in the performance of patrol and detective duties are the most salient job
distinctions contained in the record. Devou neither supervises nor per-
forms patrol duties. Devou presently has greater contact with Detectives,
with whom his job duties are identical in content and geographic location.
Some reference was made to dissatisfaction between the Sergeants and
Detectives units respecting salaries to be paid to Detectives; however, I
find that evidence unhelpful regarding the issues at hand.
With the exception of Devou's desire to be included in the Detectives unit,
no evidence of the desires of affected employees is contained in the
record. No allegation or relevant evidence of the extent of union organi-
zation or of the City's organizational structure was presented.
On the basis of these facts, I find that Devou shares a clear and
identifiable community of interest with employees in the Detectives and/or
Juvenile Officers bargaining unit. The inquiry now turns to whether a
supervisory conflict of interest exists which compels Devou's exclusion
from the Detectives and/or Juvenile Officers bargaining unit.
The City apparently contends that placing supervisory "Sergeants" in
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bargaining units with their subordinates is inappropriate.[fn]4 However, the
record fails, with regard to Devou's relationship to the Detectives Unit,
to satisfy the standard for supervisory exclusion set forth in the MPELRL.
The MPELRL provides:
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 implement those standards.
The brief of the City states in this regard merely:
While a sergeant's job involves supervision over patrolman
engaged in, among other things, crime investigation activities,
detectives work is frequently "conducted with considerable
independence". Consequently, it would not be consistent for
Sergeant DeVoe [sic] to act as both the supervisor and a case
investigator.
The Board's hearing examiners have consistently declined to exclude
leadworker or working foreman classifications from bargaining units on the
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4 The City's concern with Devou's inclusion in the Detective unit
appears to fundamentally be one of an economic nature. The City's brief
states in this regard:
Were Sergeant DeVoe [sic] to be allowed to transfer to the
Detectives unit, he would either have to accept a lesser wage, or
the existing contract would have to be amended to create two
separate wage categories within the detectives unit.
. . . .
The Employer has established a specific organizational
structure controlling the promotion of officers through the ranks
to attain the rank of corporal, sergeant, and captain. Allowing
a sergeant to be included in a unit made up of patrolmen would
invite the detectives to seek all the benefits of sergeant,
because a sergeant was included in their unit.
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basis of supervisory conflict of interest where the occupants of those
positions lack sufficient authority to make decisions, in the interest of
the employer, which adversely impact upon the employment interests of their
subordinates. See Teamsters Local Union No. 48 and Town of Lebanon, No.
86-UD-02 (Me.L.R.B. Oct. 17, 1985), aff'd, No. 86-A-01 (Me.L.R.B. Dec. 5,
1985), aff'd, No. CV-85-656 (Me. Sup. Ct., Yor. Cty., Feb. 3, 1987);
Teamsters Local Union No. 48 and Van Buren Light and Power District,
No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (Duties of line foreman who assigns,
oversees and reviews work of employees determined as a whole not to be so
distinct and dissimilar from those performed by supervised employees to
warrant exclusion from proposed unit); Teamsters Local Union No. 48 and
Town of Pittsfield, No. 81-UD-09 (Me.L.R.B. Jan. 15, 1981) (sergeant posi-
tion found to be "working supervisor" where supervisory duties were limited
and undemanding and where vast majority of time was devoted to regular
patrol work); City of Bangor and Local 1599, IAFF, No. 80-UD-15 (Me.L.R.B.
Feb. 1, 1980) (fire lieutenants held to be "group leaders" or "working
foremen" where they had various added responsibilities of a limited nature
but essentially performed rank-and-file duties). See generally M.S.A.D.
No. 5 and M.S.A.D. No. 5 Teachers Association, No. 88-UD-01 slip op. at 18
(Me.L.R.B. Oct. 16, 1987) (examples of evidence probative of existence or
absence of supervisory conflict of interest).
Similarity in job title is not probative of the existence or lack of
community of interest. Any significance attaching to Devou's apparent con-
tinuation in the rank of Sergeant is absent from the record. I have
accorded it no weight in light of the fundamental change in duties which
Devou has experienced as a result of transfer. Moreover, I have not
interpreted the Teamsters' petition to request determination of the issues
of whether the speculative duties which Gaudette anticipates Devou will
someday perform would constitute a sufficient present basis for unit clari-
fication. Neither potential authority nor the intended investment of
actual authority at a future date are sufficient bases for the establish-
ment of supervisory conflict of interest. Any inherent community of
interest shared by leadworkers and rank-and-file unit members is outweighed
only by supervisory conflict of interest predicated upon the actual and
routine exercise of supervisory authority in a manner which affects the
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working interests of those supervised. I conclude that no supervisory
conflict of interest sufficient to require exclusion from the Detectives
Unit has been established in this case. My decision respecting the unit
placement of Devou is based on his duties at date of hearing. Should
Devou's duties change sufficiently to warrant resubmission, this report
will not constitute a bar to requested clarification procedures.
UNIT CLARIFICATION DETERMINATION
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. 962(6) (1988),
the undersigned concludes that modification of the description of the
Detectives and/or Juvenile Officers collective bargaining unit is not
warranted at present.
Accordingly, the Teamsters petition is, hereby, DISMISSED.
Dated at Augusta, Maine, this 2d day of April, 1990.
MAINE LABOR RELATIONS BOARD
/s/________________________
M. Wayne Jacobs, Counsel
Designated Hearing Examiner
The parties are advised of their right, pursuant to 26 M.R.S.A. 968(4)
(1988) to appeal this report to the Maine Labor Relations Board by filing a
notice of appeal within fifteen days of the date of its issuance. See
Board Unit Determination Rule 1.10. Board General Provisions Rule 6.03.
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