STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 02-UD-03 Issued: May 31, 2002 _____________________________________ ) CORPORALS AND SERGEANT(S), ) CUMBERLAND COUNTY SHERIFF'S OFFICE, ) ) Petitioner, ) ) and ) ) AFSCME COUNCIL 93, ) UNIT DETERMINATION ) REPORT Certified Bargaining Agent ) ) and ) ) CUMBERLAND COUNTY COMMISSIONERS, ) ) Employer ) _____________________________________) PROCEDURAL HISTORY This unit determination proceeding was initiated on October 31, 2001, when Steven Breton for the Corporals and Sergeants, Cumberland County Sheriff's Office, filed a petition for unit determination and decertification/bargaining agent election with the Maine Labor Relations Board ("Board"). The petition seeks a determination whether a unit consisting of staff sergeants, sergeants and corporals should be severed from the existing Cumberland County Sheriff's Department bargaining unit pursuant to Sections 966 and 967 of the Municipal Public Employees Labor Relations Law ("MPELRL"). In the petition, the prospective bargaining agent for this unit was identified as the Maine Association of Criminal Justice Professionals ("MACJP"). Council 93, American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME") is the certified bargaining agent for the Cumberland County Sheriff's Department bargaining unit. Both the Cumberland County Commissioners ("employer") and AFSCME [-1-] _________________________________________________________________ filed a timely response to the petition. The hearing examiner convened two prehearing conferences by telephone in this matter, on January 10, 2002, and January 28, 2002. The Prehearing Conference Memorandum and Order dated January 30, 2002, is incorporated herein by reference. A hearing notice was issued on February 8, 2002, and was posted for the benefit of affected employees. The hearing was conducted on March 4, 2002, with a continued hearing conducted on March 29, 2002. Daniel R. Felkel, Esq., appeared on behalf of the petitioner/MACJP. Robert Van Campen, Esq., appeared on behalf of AFSCME. Annalee Rosenblatt appeared on behalf of the employer. The parties were afforded full opportunity to examine and cross- examine witnesses, and to present evidence. The following witnesses were presented at the hearing: for the Petitioner/ MACJP: Lieutenant Rodney Sparkowich, Staff Sergeant Stephen Breton, and Annalee Rosenblatt; for AFSCME: James Beaulieu, Corporal Stephen Vail, and Sergeant David Moore; for the employer: Major Jeffery Newton. The parties presented written argument following the conclusion of the hearing, on April 22, 2002. JURISDICTION The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination herein lies in 26 M.R.S.A. 966. FINDINGS OF FACT 1. The Cumberland County Sheriff's office is divided into two divisions: corrections and field services. The corrections division operates the Cumberland County jail and all services related to jail operations. The field services division operates other services such as the road patrol, criminal investigations, -2- _________________________________________________________________ and communications. 2. The Cumberland County Sheriff's Department bargaining unit ("unit") contains positions in both the corrections and the field services divisions. A large number of positions in the corrections division are contained in the unit (such as corrections officers, corporals, sergeants, intake supervisor, property officer, work release officers, education technician, etc). A smaller number of positions in the field services division are contained in the unit (such as civil deputy, crime analyst, administrative secretary, communications supervisor, dispatchers, etc.). Appendix A, which was derived from joint exhibits 1 and 2, is an abbreviated organizational chart showing the placement of bargaining unit positions within the Sheriff's Department. 3. Some positions in the bargaining unit (especially those in the field services division) have no connection with jail operations and are not located at the jail. For instance, employees in communications work in a separate facility in Windham, dispatching patrol officers and emergency services. Employees in the civil deputy office work in a separate facility and process and serve papers. 4. All of the bargaining unit employees employed at the jail are charged with the care, custody and control of inmates in some fashion. 5. A corrections officer (CO) must have a high school degree and three years' post-secondary employment or a combination of education and employment equal to three years. They are required to complete the Maine Criminal Justice Academy (MCJA) basic corrections course in the first year of employment. 6. A corporal must have two years of service in -3- _________________________________________________________________ corrections, 12 months' experience as an officer-in-charge, and must have completed the MCJA basic corrections course. 7. A sergeant must have three years of service in corrections, 12 months' experience as an officer-in-charge or corporal, and must have completed the MCJA basic corrections course. 8. Corporals and sergeants are selected based on scoring after a written examination, interview by an oral board made up of members of management and labor, and review of the candidate's personnel file. 9. The CO's have the most direct, day-to-day duties attending to the care, custody and control of inmates. The supervisory positions at issue in this petition (corporals, sergeants and staff sergeants) all perform some of the same direct duties of the CO's, but have additional supervisory responsibilities as more fully described below. 10. The corporals, sergeants and staff sergeants are all empowered to administer discipline up to a written reprimand to those positions below them. The steps of discipline are oral counseling (not placed in personnel file), written warning, written reprimand, suspension and discharge. Before supervisors administer written discipline, they must have the discipline reviewed by a captain who checks the employee's personnel file in order to determine whether the level of discipline is appropriate. 11. While empowered to administer written warnings or reprimands, corporals are less likely to carry out this task, except in the absence of their supervising sergeant. 12. If a supervisor recommends discipline more serious than -4- _________________________________________________________________ a written reprimand, the supervisor prepares a report which is sent up the chain of command to the chief deputy. This normally results in the chief deputy ordering an internal affairs investigation and further action which does not involve the supervisor. 13. Corporals, sergeants and staff sergeants are empowered to write annual performance evaluations for those employees below them whom they have had the opportunity to observe. These evaluations are reviewed by a lieutenant or captain for accuracy and rating. 14. There are three staff sergeant positions: the intake unit supervisor, the transportation unit supervisor and the food service supervisor. The food service supervisor (along with other food service employees) is not part of the Sheriff's Department bargaining unit. The intake unit supervisor supervises intake sergeants and officers, classification technicians, the property officer and the records clerk. The transportation unit supervisor supervises the transportation and court officers (no sergeants or corporals). The food service supervisor supervises the cooks (no sergeants or corporals). These positions were created in 1998, as more fully described in Findings of Fact No. 26. 15. The staff sergeants are in charge of the overall operations of their respective unit at all times (not just on a particular shift, which is the extent of the authority of sergeants and corporals). 16. Staff sergeants are in charge of scheduling; corporals and sergeants do not perform this function. 17. Staff sergeants report directly to their respective captain (captain of operations and security or captain of -5- _________________________________________________________________ administration and support). Most sergeants report to lieutenants; corporals report to sergeants. 18. Staff sergeants attend periodic management meetings, where they may receive confidential information and instructions. Such meetings are not attended by either the sergeants or corporals. 19. The staff sergeants, sergeants and corporals are not directly involved in hiring or promoting subordinates. None of these positions is authorized to adjust grievances that might be filed by subordinates. 20. The bargaining unit has been in existence since 1981. AFSCME has represented the bargaining unit since its inception. AFSCME and the employer have negotiated six or seven successive collective bargaining agreements (CBA's), all of two or three-year duration. The most recent CBA's have covered the periods from January 1, 1999, to December 31, 2001, and from January 1, 2002, to December 31, 2004. 21. The parties have used mediation at times in settling past CBA's. The parties have gone to fact-finding to settle one CBA. The parties have never been to interest arbitration to settle a CBA. 22. AFSCME and the employer have maintained generally good labor relations throughout their collective bargaining history. The parties have not experienced any particular difficulties in bargaining for a bargaining unit which is composed of such diverse positions. 23. Grievances filed by AFSCME on behalf of bargaining unit members have gone to arbitration about 35 times since 1994. In the last few years (only), AFSCME has prevailed in all grievances -6- _________________________________________________________________ that have gone to arbitration. 24. No complaints alleging a violation of the duty of fair representation have been filed by any bargaining unit member against AFSCME with the Maine Labor Relations Board since the inception of the bargaining unit. 25. The 1996-1998 CBA moved the CO's from pay range 2 to pay range 3. There was no commensurate change in pay grade for the corporals or sergeants, which caused resentment amongst some employees who held these supervisory positions. 26. In 1998, the employer conducted a wage and compensation study of certain positions in the bargaining unit. One result of this study was that the employer recommended that the positions of intake unit supervisor, transportation unit supervisor and food service supervisor (all at that time with the rank of sergeant), be elevated to the rank of staff sergeant with a raise in pay. The employer and AFSCME negotiated over this proposed change. The parties agreed to the increase in rank for the positions, and a change in pay range from range 5 to range 6. The AFSCME Executive Board insisted that the positions be filled through the promotion process (i.e., the persons in the positions needed to compete for the promotion to the staff sergeant rank). The employees who held the positions all competed for and received the staff sergeant position. However, the need to compete for the position caused some resentment amongst the affected employees against AFSCME. 27. The 1999-2001 CBA contained across-the-board wage increases for the members of the bargaining unit. While this caused some "stretch" in the wages paid to the corporals and sergeants (since they were higher paid than the CO's), there was no provision in this CBA to single these positions out for more -7- _________________________________________________________________ pay than the CO's. 28. Mid-term during the 1999-2001 CBA, the parties negotiated a wage increase for employees with correction officer certificates and for employees with more than three years of tenure. The wage increase affected most of the CO's, corporals and sergeants. The employer particularly wanted this increase in wages in order to attract and retain employees to the CO position, which the employer perceived to be a problem at that time. 29. In negotiating the 2002-2004 CBA, the parties used interest-based bargaining. About 85 proposals were brought to the table, 72 from AFSCME. The five-member bargaining team for the unit was headed by a corporal, who was well prepared and represented the interests of the unit very well. 30. In this negotiation, the employer continued to be interested in attracting and retaining CO's. In addition, the employer was interested in increasing the pay of the corporals and sergeants because the employer felt that qualified CO's were not seeking a promotion because the pay difference did not match the increased responsibilities of the supervisory positions. The employer proposed the greatest wage increase for CO's in the first year of the contract, and the greatest wage increase for the corporals and sergeants in the second year of the contract. AFSCME sought across-the-board raises, and also a change in the pay scale to reflect years of services. The employer's wage proposal was eventually adopted in the CBA. 31. In the current CBA, the pay scale for 2002 is increased by three percent plus $1.00 per hour for all positions. The pay scale for 2003 will be increased by three percent plus $.50 per hour for all non-supervisors; three percent plus $1.50 per hour -8- _________________________________________________________________ for corporals; and three percent plus $1.75 per hour for sergeants. The pay scale for 2004 will be increased by three percent plus $1.00 for all CO's, corporals and sergeants. As the result of these increases, the corporals and sergeants in this bargaining unit will be the highest paid corrections officers of their rank in the state at the end of this CBA. 32. The 2002-2004 CBA was ratified by members of the bargaining unit by a vote of 92 to 8. 33. There has been little actual conflict in the bargaining unit caused by the fact that the staff sergeants, sergeants and corporals are in the same unit as the CO's, whom they supervise. However, some supervisors are concerned that the CO's think the supervisors will be "soft" on them since they are all in the same unit. The employer is concerned that supervisors might not be as forthright in arbitrations against subordinates in their same unit; AFSCME does not believe this is a legitimate concern. 34. The supervisors in the bargaining unit have not held themselves out as a separate or independent part of the bargaining unit. Some supervisors have been very active in union affairs, while others have not. Lieutenant Rodney Sparkowich, when he was employed as a sergeant and staff sergeant, was a long-time shop steward, member of the negotiating committee, and union president. On the other hand, staff sergeant Steve Breton (the petitioner) has had minimal involvement in union positions and activities. 35. AFSCME has not singled out the corporals and sergeants for different treatment than the CO's and other members of the bargaining unit. AFSCME has represented the supervisors in grievances, for instance, in the same manner as for the rest of the members. -9- _________________________________________________________________ 36. Any dues-paying member of AFSCME in the bargaining unit can be on the bargaining team, although sometimes the number of members of the team is limited as part of the negotiation ground rules. Any dues-paying member of AFSCME in the bargaining unit can submit proposals for CBA negotiation, and such proposals will be brought to the table. 37. In around 1999, Lieutenant (then Staff Sergeant) Sparkowich asked AFSCME business agent Jim Beaulieu whether AFSCME might consider representing a separate unit of supervisors. This was said during the course of an unrelated grievance. Mr. Beaulieu did not believe this was a good idea at that time. 38. The first time that AFSCME was aware that a group of supervisors was interested in a separate unit was in 2000. In the summer of 2000, Mr. Beaulieu met with a group of supervisors interested in separating from the bargaining unit. He advised the group that AFSCME maintained an internal policy that prevented it from representing units smaller than 30 employees. He also advised the group that he believed the smaller group would be less effective during negotiations. 39. No supervisor ever requested that AFSCME assign a separate shop steward just for supervisors. Lieutenant Sparkowich served in this capacity in a de facto fashion during his long years of service as a shop steward. 40. In the last few years, some supervisors have believed that the added responsibility of their positions warranted a higher wage or wage-and-benefit package to separate their level from that of the CO's. However, no supervisor ever approached AFSCME and requested that this be part of the union's bargaining position during CBA negotiations. -10- _________________________________________________________________ 41. No supervisor ever approached AFSCME and requested any contract proposal specifically benefitting them or applicable solely to their position. PREHEARING STIPULATIONS [Some changes have been made to the parties' stipulations by the hearing officer to improve readability. All changes are indicated by brackets.] SIMILARITY IN KINDS OF WORK PERFORMED 1. All corporals and all sergeants in the proposed unit, except the communications supervisor, have care, custody, and control of inmates as their responsibility. 2. All corporals and sergeants in the proposed unit, except the communications supervisor, supervise certified corrections officers. 3. The sergeants have corporals reporting to them, except for the communications supervisor (sergeant), who has dispatchers reporting to him. 4. The corporals have correction officers reporting to them. COMMON SUPERVISION AND DETERMINATION OF LABOR RELATIONS POLICIES 1. The Sheriff's department has two divisions; field services division and corrections division. 2. All sergeants and corporals, except the communications supervisor, [are] in the corrections division. The communications supervisor is in the county's executive department. 3. The corrections division is managed by the Jail Administrator. The Jail Administrator reports to the Chief Deputy of the Department. The Chief Deputy is an appointed position who serves at the pleasure of the Sheriff. -11- _________________________________________________________________ 4. There are two captains in the jail division - one for operations and security and one for administration and support. The corrections' shift lieutenants and transport supervisor (staff sergeant) report to the captain for operations and security. The intake supervisor (staff sergeant) reports to the captain for administration and support. 5. There are shift lieutenants who report to the captain of operations and security. Area sergeants report to the shift lieutenants along with the transport supervisor (staff sergeant). 6. The corporals report to the area sergeants. 7. The intake sergeants report to the intake supervisor (staff sergeant) 8. In the field services division the communications captain reports to the County Manager. 9. The communications supervisor (sergeant) reports to the communications captain. 10. Dispatchers report to the communications supervisor (sergeant) 11. All the proposed unit positions are currently covered by a labor agreement for the year January 1, 2002, through December 31, 2004. The labor relations policies are determined by three elected County Commissioners in negotiations with Council 93, AFSCME. SIMILARITY IN THE SCALE AND MANNER OF DETERMINING EARNINGS 1. The positions of sergeant and corporal are currently covered by a collective bargaining agreement. The pay is determined by collective bargaining. The positions are paid an hourly rate based on their placement on a salary grid. In addition, they are eligible for longevity pay at 10 and 15 years of service. They are eligible for shift differentials and, except for the communications supervisor, payment when functioning as a field training officer. Except for the -12- _________________________________________________________________ communications supervisor, they are also eligible for longevity pay at 3 years and 5 years of service and upon achieving master corrections designation receive additional pay. All positions are eligible for additional wages for an associate's and bachelor's degree. 2. The position of corporal is a grade 4; the position of communications supervisor and sergeant is grade 5; the positions of intake supervisor (staff sergeant) and transportation supervisor (staff sergeant) is grade 6. In 2002, grade 4 base pay ranges from $13.16 to $16.70 per hour, grade 5 from $13.48 to $16.70 per hour; and grade 6 from $13.99 to $17.47 per hour. SIMILARITY IN EMPLOYMENT BENEFITS, HOURS OF WORK AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT All sergeants and corporals in the proposed unit are eligible for identical benefits, all perform shift work on a seven day, twenty-four hour basis. The one exception as noted above, is the communications supervisor is not eligible for FTO pay. All sergeants and corporals in the proposed unit, except for the communications supervisor work 5 eight-hour shifts. The communication supervisor works 2 twelve-hour shifts and 2 eight- hour shifts on a four-days-on and three-days-off schedule. SIMILARITY IN THE QUALIFICATION, SKILLS, AND TRAINING OF EMPLOYEES 1. All positions in the proposed unit must have a high school degree or equivalent. 2. All positions in the proposed unit must graduate from the Maine Criminal Justice Academy basic corrections course or [receive a] waiver, except for the communications supervisor. 3. All positions in the proposed unit must be familiar with Maine Jail Standards, Department Operating Procedures, and Policy and Procedure Manual, except the communications supervisor. 4. In addition, the intake supervisor must be familiar with -13- _________________________________________________________________ the Accreditation Standards and the Maine Bail Code, hold rank of corporal or sergeant at time of promotion, and [have] previous qualification in intake or [have] ability to function under stress and time constraints. 5. In addition to numbers 1-3 above, the transportation unit supervisor must successfully complete the pre-service law enforcement course from the Maine Criminal Justice Academy, hold the rank of corporal or sergeant, and [be] transport-qualified, with a knowledge of basic first aid, mental health laws, criminal code, and proper radio procedure, and have previous experience in a supervisory capacity. 6. In addition to number 1 above, the communications supervisor must have demonstrated proficiency in communications skills, must be able to pass terminal operators control course, have working knowledge of Maine statutes and familiarity with Maine Telecommunications and Radio Operations Manual, National Crime Information Central Manual and National Law Enforcement Telecommunications System, and [have] 5 years experience as a dispatcher for the Sheriff's Department. 7. Corporals and Sergeants must be able to physically control violent/unruly members of inmate population. 8. Two years of uninterrupted service in corrections [are required] for corporals and 3 years for sergeants. 9. Twelve months supervisory and leadership skills [are required] for corporals and 12 months experience in supervision [is required] for sergeants. FREQUENCY OF CONTACT OR INTERCHANGE AMONG THE EMPLOYEES The intake and transport supervisors work a Monday-through- Friday day-shift schedule. The other sergeants and corporals, except the communications supervisor, work different shifts and do not necessarily have weekends off. Within those parameters, some contact would be occasional and would depend on days off -14- _________________________________________________________________ while others would be daily. The communications sergeant would never have contact with the other employees. GEOGRAPHIC PROXIMITY All positions in the proposed sergeant and corporal unit work out of the county jail in Portland. The communications supervisor works out of the communications center in Windham. HISTORY OF COLLECTIVE BARGAINING Since about 1982, the sergeants and corporals have been covered by a collective bargaining agreement and represented by Council 93, AFSCME. The original bargaining unit was formed by voluntary agreement. DESIRES OF THE AFFECTED EMPLOYEES The Employer is unable to comment upon the desires of the affected employees. EXTENT OF UNION ORGANIZATION There are two bargaining units: Teamsters Local 340 represents patrol deputies, sergeants, and lieutenants in the field services division of the Sheriff's Department. AFSCME Council 93 represents correction officers, including sergeants and corporals, lobby receptionist, receptionist clerk, records clerk, dispatchers, administrative secretary, education technician, administrative civil deputy, civil deputies, community release planner and communications supervisor. All are in the corrections division except communications supervisor, dispatcher, administrative civil deputy, and civil deputies, who are in the field services division. -15- _________________________________________________________________ THE EMPLOYER'S ORGANIZATION STRUCTURE At the top of the organization structure are the three elected County Commissioners. There is a County Manager who reports to the Commissioners. There is a Deputy County Manager, Director of Human Resources, Director of Budget and Planning, Computer System Administrator, and Deputy County Clerk who report directly to the County Manager. The next tier of the organizational structure are the various departments of County Government, most of which are headed by elected officials, one of which is the Sheriff's Department. The Sheriff's Department is divided into two divisions. The Field Services Division is organized as follows: Sheriff - Executive Assistant and Chief Deputy reports to this position. Chief Deputy - Communications Captain, Field Service Captain, Criminal Investigation Captain, and Administrative Lieutenant for Internal Affairs reports to this position. Communication Captain - Communications sergeant and secretary report to this position. Field Services Captain - Two field service lieutenants report to this position. Field Service Lieutenants - Sergeants and road deputies report to this position. Criminal Investigation Captain - Administrative, Training, and CID Lieutenants report to this position. Administrative Lieutenant - Detectives, secretary, civil deputies, school resource officers, crime analyst, community liaison officer, and complaint officer report to this position. -16- _________________________________________________________________ The Jail Division is organized as follows: Sheriff - Executive Assistant and Chief Deputy reports to this position. Chief Deputy - Jail Administrator reports to this position. Jail Administrator - Executive secretary, administrative services lieutenant (accreditation manner), the captains for administration/support and operations/security report to this position. Captain for Operations and Security - Shift lieutenants, transport supervisor (staff sergeant) recreation officer and inventory control coordinator reports to this position. Shift Lieutenants - The area sergeants and lobby officers report to this position. Area Sergeants - Corporals report to this position. Transport Supervisor (Staff Sergeant) - Transport and court officers report to this position. Corporals - Correction officers report to these positions. Captain for Administration and Support - Food service supervisor, education coordinator, intake supervisor, health service administrator, chaplain, and lieutenant for community corrections reports to this position. Food Service Supervisor - Cooks I and II report to this position. Education Coordinator - the education technicians and librarian report to this position. Intake Supervisor (Staff Sergeant) - Intake sergeants, classification technicians, property officers, and records clerk report to this position. Intake Sergeants - Intake officers report to this -17- _________________________________________________________________ position. Health Service Administrator - Substance abuse counselors, mental health counselors, and nurses report to this position. (This service is a sub- contractor). Lieutenant - Community Corrections - Vocational teachers, community release planner, work release officers, community services officers, and electronic monitoring officers report to this position. Vocational Teacher - Education technician and trustee coordinator report to this position. OTHER STIPULATIONS 1. Council 93, American Federation of State, County and Municipal Employees, AFL-CIO ("AFSCME") is a public employee organization that is the certified bargaining agent for the Cumberland County Sheriff's Department Bargaining Unit, within the meaning of 26 M.R.S.A. 962(2). 2. The Maine Association of Criminal Justice Professionals is a public employee organization that seeks to become the bargaining agent for a unit consisting of staff sergeants, sergeants and corporals (currently part of the Cumberland County Sheriff's Department Bargaining Unit), within the meaning of 26 M.R.S.A. 962(2). 3. The Cumberland County Commissioners are a public employer within the meaning of 26 M.R.S.A. 962(7). 4. There is neither a contract bar nor an election bar to the Unit Determination-Decertification-Bargaining Agent Election Petition filed on October 13, 2001, that is the subject of this proceeding. -18- _________________________________________________________________ 5. The Cumberland County Sheriff's Department Bargaining Unit was created by the filing of an Agreement on Appropriate Bargaining Unit dated December 14, 1981. At that time, the unit was composed of the following positions: assistant jail administrator, lieutenant, sergeants, corporals, patrol deputies, detention officers, court officer, bailiff, medics, transportation officer, court building security officer, cook, recreation officer, work release officer, crime analyst, dispatchers, records director, records clerks, jail social worker, maintenance person, mechanic, detectives, and intake officers. EXHIBITS The parties agreed to the submission of the following joint exhibits: Exhibit No. Name Date 1. Organizational Chart - Jail Division 11/1/01 Organizational Chart - Field Services Division 1/4/02 2. Job Description - Corrections Officer 9/21/01 3. Job Description - Corrections Corporal 9/21/01 4. Job Description - Corrections Sergeant 9/21/01 5. Job Description - Transportation Unit Supervisor (Staff Sergeant) 9/21/01 6. Job Description - Intake Unit Supervisor (Staff Sergeant) 9/21/01 7. Job Description - Communications Supervisor 10/01/01 8. Job Description - Complaint Officer 9/21/01 9. Job Description - Lobby Receptionist 9/21/01 -19- _________________________________________________________________ 10. Job Description - Receptionist/Clerk 10/01/01 11. Job Description - Records Clerk 9/21/01 12. Job Description - Corrections Officer II 9/21/01 13. Job Description - Dispatcher 10/01/01 14. Job Description - Administrative Secretary 2/5/02 15. Job Description - Crime Analyst 10/01/01 16. Job Description - Education Technician 9/21/01 17. Job Description - Electronic Monitoring Officer 9/21/01 18. Job Description - Property Officer 9/21/01 19. Job Description - Transportation Officer 9/21/01 20. Job Description - Administrative Civil Deputy 10/01/01 21. Job Description - Civil Deputy 10/01/01 22. Job Description - Community Services Officer 9/21/01 23. Job Description - Recreation Officer 9/21/01 24. Job Description - Trustee Coordinator 9/21/01 25. Job Description - Work Release Officer 9/21/01 26. Collective Bargaining Agreement 1/1/02 - 12/31/04 The following exhibits were admitted without objections: MACJP-1. Affidavit of Steve Breton MACJP-2. Affidavit of Steve Butts MACJP-3. Affidavit of Larry LaPointe MACJP-4. Affidavit of Glenn MacDonald MACJP-5. Affidavit of Stephen Vail -20- _________________________________________________________________ MACJP-6. Affidavit of David Moore AFSCME-1. Affidavit of Donald Young AFSCME-2. Affidavit of Stephen Robinson AFSCME-3. Affidavit of David Dunnemann AFSCME-4. Affidavit of Joad Welch AFSCME-5. Affidavit of Thomas Wiley AFSCME-6. Affidavit of Sean Brown AFSCME-7. Affidavit of David Moore AFSCME-8. Affidavit of Stephen Vail AFSCME-9. Affidavit of Jennifer Reed AFSCME-10. Affidavit of Charles Ryder AFSCME-11. Affidavit of Carl Hitchcock AFSCME-12. Affidavit of Glenn MacDonald DISCUSSION The issue presented by this case is whether a group of corporals and sergeants, now a part of the Cumberland County Sheriff's Department bargaining unit, should be allowed to sever from that unit and become a separate bargaining unit. The petitioner argues that the severance petition[fn]1 should be granted because the corporals and sergeants share a clear community of interest, and do not share a community of interest with the present, larger bargaining unit. The employer concurs in this argument, although urging that the severed bargaining unit should ____________________ 1 As described more fully below, the proper mechanism to seek the severance of a unit is to file a petition for a unit determination, as the petitioner has done here. The Board Rules do not provide for a "petition for severance" per se; however, for ease of reference the petition will be referred to as one for severance for the remainder of the decision. -21- _________________________________________________________________ include additional supervisory classifications.[fn]2 AFSCME argues that the severance petition should be denied because the present unit shares a community of interest, has a long and stable history of collective bargaining, and because AFSCME has provided adequate representation for the entire unit, including the corporals and sergeants. The Board has ruled that a unit determination petition accompanied by an adequate showing of interest is the proper mechanism for attempting to sever a bargaining unit from an existing unit. See Teamsters Local No. 48 and State of Maine (Institutional Services Unit), et al., No. 84-A-02 (MLRB Apr. 2, 1984); City of Bangor and Local 1599, IAAF, No. 80-A-03, at 3-4 (MLRB July 18, 1980). The petitioner here has presented a sufficient petition accompanied by an adequate showing of interest from employees currently holding corporal or sergeant positions. As a unit determination, this matter turns upon an evaluation of the presence or absence of a "clear and identifiable community of interest" per 26 M.R.S.A. 966(2). 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 ____________________ 2 The issue of whether additional supervisory classifications should be added to the corporal and sergeant unit, if this unit should be severed, is not properly before the hearing officer in this matter. A separate petition was filed with the Board on October 23, 2001, for a unit determination and bargaining agent election regarding certain lieutenant classifications also employed in the Cumberland County Sheriff's Department (Case No. 02-UD-02). These classifications are currently unrepresented. The prospective bargaining agent for this unit is also the MACJP. This matter is being held in abeyance, pending the outcome of the present matter. -22- _________________________________________________________________ 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, Sec. 22(3) of the Board Rules. The requirement that the hearing examiner examine the extent of the community of interest was explained by the Board over 20 years ago, 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, slip op. at 4 (MLRB Oct. 17, 1979). While a petition for severance entails the same analysis of the community of interest factors as any unit determination petition, the issues are more complex. The hearing examiner must analyze both whether a community of interest exists amongst the employee classifications in the proposed bargaining unit to be severed, and also whether a community of interest exists amongst the proposed bargaining unit and the larger existing unit. As the National Labor Relations Board has noted, in its seminal severance case Mallinckrodt Chemical Works and IBEW, Local No. 1, 162 NLRB 387 (1966), a severance determination requires a balancing of competing interests: The cohesiveness and special interest of a craft or departmental group seeking severance may indicate the -23- _________________________________________________________________ appropriateness of a bargaining unit limited to that group. However, the interests of all employees in continuing to bargain together in order to maintain their collective strength, as well as the public interest and the interests of the employer and the plant union in maintaining overall plant stability in labor relations and uninterrupted operation ... may favor adherence to the established patterns of bargaining. Mallinckrodt, at 392. In addition, one of the eleven community of interest factors, history of collective bargaining, receives heightened scrutiny in a severance petition. Previous Board decisions have deemed the history of collective bargaining to be a "very important" and sometimes the decisive element in severance petitions. Cf., e.g., Teamsters Local No. 48 and Town of Winslow, No. 84-UD-17, slip op. at 11 (MLRB May 31, 1984) (petition to sever fire fighters from public works unit denied; bargaining history "long" and "fruitful"); Council No. 74, AFSCME and Cumberland County, No. 84-UD-11 (MLRB March 16, 1984), aff'd, No. 84-A-04 (MLRB Apr. 25, 1984) (petition to sever patrol positions from corrections positions granted; two-year bargaining history cited). The NLRB also finds the history of collective bargaining to be a key element in determining severance petitions. Kaiser Foundation Hospitals and Independent Brotherhood of Skilled Hospital Maintenance Workers, 312 NLRB 933, at 936 (1993) (Board reluctant to disturb bargaining unit with long history of continuous bargaining, even where Board would not have found the unit appropriate if presented with the issue ab initio). The burden on the petitioner seeking to sever positions out of an existing unit is high. While severance petitions resolved by hearing have not been numerous before the Board, the hearing examiner is aware of only one severance petition that has been granted in the Board's history, the petition to sever the patrol positions from the present bargaining unit. Council No. 74, -24- _________________________________________________________________ AFSCME and Cumberland County, supra. The NLRB has found that the party seeking severance clearly bears a "heavy burden." Kaiser Foundation Hospitals, 312 NLRB at 935 fn.15. A recent NLRB case affirmed by that Board reviewed the history of severance cases, concluding that severance has been granted "sparingly" by the NLRB. Metropolitan Opera Ass'n and Operatic Artists of America, 327 NLRB 740, at 752 (1999). One MLRB hearing examiner reviewed precedent from public sector labor boards in other states, concluding that those cases reflected the " . . . overwhelming view that severance petitions, while procedurally permissible, must nevertheless overcome formidable standards for success." Teamsters Local No. 48 and City of Portland, No. 81-UD-10, slip op. at 15 (MLRB July 10, 1981). Before applying these standards to the present matter, the hearing examiner will address the stipulations of fact. These stipulations, initially submitted by the employer and stipulated to by the other parties with little change, address the community of interest factors as amongst the classifications in the proposed severed bargaining unit of corporals and sergeants. These stipulations establish that the staff sergeants, sergeants and corporals are all supervisors in the Sheriff's Department bargaining unit, with varying degrees of supervisory authority in accordance with the chain of command. All of the supervisory positions employed in corrections perform similar kinds of work - the care, custody and control of inmates, and the supervision of subordinate positions.[fn]3 All these supervisory positions have ____________________ 3 The communications supervisor (a sergeant) actually performs very different job functions from sergeants in the corrections division. This position supervises dispatchers for patrol deputies and for emergency services. This position works in the field services division, and is the only supervisory position at issue which does not work in the corrections division. This difference in kind of work performed merely reflects the fact that the bargaining unit already consists of positions with divergent duties in the chief deputy's -25- _________________________________________________________________ similar base qualifications, skills and training (high school degree, completion of Maine Criminal Justice Academy basic corrections course), with additional experience and service required for each step in the chain of command. All are supervised by positions higher in the chain of command depending on the position: corporals by sergeants, sergeants by lieutenants or captains, and staff sergeants by lieutenants or captains. All of the positions are covered by a collective bargaining agreement. Therefore, the labor relations policy is commonly determined for the positions, the positions are paid in a similar scale and manner, and the positions have similar benefits, hours of work and other terms and conditions of employment. Most of the positions have the ability to have contact or interchange, although this is limited to some extent by the job function and by the shift schedule. All of the supervisor positions work at the jail, except for the communications supervisor. The extent of union organization and the employer's organizational structure both support a finding that the supervisors share a community of interest. As more fully described below, neither the history of collective bargaining nor the desires of the employees clearly support a finding that the supervisors should be severed from the present bargaining unit. The majority of factors contained in Chap. 11, 22(3) of the Board Rules, however, support a finding that the positions of staff sergeant, sergeant and corporal share a community of interest. The issue remains whether this group of supervisory positions shares a community of interest with the remaining positions in the present bargaining unit. Below, the hearing examiner will more fully discuss each community of interest _______________ business office, communications, criminal investigation, and corrections. -26- _________________________________________________________________ factor as it relates to this larger question.[fn]4 (1) Similarity in kind of work performed. All of the positions in the proposed supervisory bargaining unit (corporals, sergeants, and staff sergeants) supervise subordinates pursuant to the chain of command. The remaining positions in the bargaining unit are "front line" positions with no supervisory responsibilities. Unlike the National Labor Relations Act, the MPELRL grants supervisors collective bargaining rights and permits the inclusion of supervisors in bargaining units of subordinate employees. In Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professional, No. 85-A-01, slip op. 8 (MLRB Feb. 6, 1985), the Board stated: Section 966(1) does not require the exclusion of supervisory employees from bargaining units composed of the employees whom they supervise but relegates the decision of the supervisory employees' unit status to the sound discretion of the hearing examiner. MSAD No. 14 and East Grand Teachers Ass'n, MLRB No. 83-A-09, at 12 (Aug. 24, 1983). 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 such separate supervisory units . . . The Board has found that 26 M.R.S.A. 966(1) expresses a preference that supervisory employees not be included in the same bargaining unit with the employees whom they supervise. In Town ____________________ 4 Regarding some of the community of interest criteria, the hearing examiner has focused particularly on the relationship between the corrections supervisors and those that they supervise in corrections (the CO's and other subordinates in the chain of command). It is the conflict or lack of conflict between these positions which was the particular focus of the parties at the hearing. The bargaining unit is so diverse currently that no other comparison makes sense. Neither a corrections staff sergeant nor a CO have a similar job to a business office secretary, for example. Yet all these diverse positions have been able to function as a collective unit for purposes of collective bargaining for over 20 years. -27- _________________________________________________________________ of Kittery and Teamsters Local No. 48, No. 83-A-02, slip op. at 4 (MLRB Feb. 7, 1983), the Board recognized that the inclusion of supervisory employees in the same unit with the employees whom they supervise could result in a conflict of loyalties on the part of the supervisors, between that owed to the employer and that felt for fellow unit members, and such conflict could interfere with the effective supervision of the subordinate employees. 26 M.R.S.A. 966(1) gives guidance to the hearing examiner in identifying situations where conflicting interests and loyalties may arise. The relevant portion of 966(1) states: 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 or 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. While bearing in mind that this is a severance petition and not a unit determination petition for a new bargaining unit, the hearing examiner believes that 966(1) provides guidance on the issue of whether the corporals, sergeants and staff sergeants perform similar kinds of work as their subordinates, one of the key elements when evaluating the existence of a community of interest. Under the first prong of the test outlined in 966(1), the hearing examiner must evaluate whether the principal functions of -28- _________________________________________________________________ the position involve scheduling, assigning, overseeing or reviewing the work of subordinates. Of the positions at issue, only the staff sergeant participates in scheduling; the corporals and sergeants do not. The staff sergeants are in charge of the overall operations of their respective units; sergeants are responsible only for the operations of their shift; corporals have even less shift supervisory responsibility (unless they are serving in the place of an absent sergeant). All of the positions are empowered to write annual performance evaluations for subordinates whose performance they have observed, but these evaluations are reviewed by a lieutenant or captain. All of the positions are empowered to administer discipline up to a written reprimand, but corporals are very unlikely to use this authority in the real day-to-day operations of the jail. In applying the first prong of the test to the positions at issue, one fact is abundantly clear - the positions of corporal, sergeant and staff sergeant do not share the same level of supervisory authority. As Lieutenant Rodney Sparkowich stated in his testimony at Tr. 17: " . . . the way that I can most easily perceive it is a sphere of influence. The inmate is only concerned with their behavior. The line officer or the correctional officer is concerned with their own behavior and the inmates' behavior. The supervisor is responsible for the inmates' behavior, the subordinates' behavior and their own behavior, then on through levels of management and up to the sheriff. We're all responsible for care, custody and control, but at varying different levels that are dramatically divergent in their aspect. The CO's and all three supervisory levels above the CO's are charged with the care, custody and control of inmates. This is their goal, and also the largest part of their day-to-day duties. The principal function of the corporals and sergeants -29- _________________________________________________________________ (especially) is the care, custody and control of inmates, not scheduling, assigning and reviewing the work of subordinates. The corporals and sergeants function, in many ways, like "line foremen" or "working foremen," which the Board has long found may be a part of the same bargaining unit as their subordinates. See, e.g., Teamsters Local No. 48 and Van Buren Light and Power District, No. 85-UD-14 (MLRB 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 No. 48 and Town of Pittsfield, No. 81-UD-09 (MLRB Jan. 15, 1981) (sergeant position found to be "working supervisor" where supervisory duties were limited and undemanding and where vast majority of time was devoted to regular patrol work). Only the staff sergeants exert the level of supervisory authority and spend the time on supervisory duties which approach the level of "true" supervisors under the first prong of the test. Yet, the staff sergeants number only three in a proposed severed supervisory unit consisting of 16 supervisory members. The second prong of the test contained in 966(1) requires an evaluation whether a supervisor performs duties that are "distinct or dissimilar" from the duties of the employees who are supervised. As another hearing examiner has noted, this prong was not meant to encompass any and all dissimilar duties: [D]uties contemplated by the "distinct and dissimilar" criterion include those in connection with hiring (or making recommendations), transfers, layoffs and recalls, and promotions duties that substantially align the interest of the supervisor with the interests of the employer and cause conflicts of interest. State of Maine and MSEA, No. 91-UC-04, slip op. at 15 (MLRB Apr. 17, 1991). None of the three supervisory positions have -30- _________________________________________________________________ significant authority in any of these areas - hiring, promoting, transferring and the like. All authority in these areas, as well as the authority to suspend, discharge or layoff, is held by positions above the three supervisory positions at issue. As to the third prong of the test outlined in 966(1), none of the supervisors exercise judgment in adjusting grievances, enforcing the collective bargaining agreement per se, or establishing performance standards. All have a role in discipline (up to written reprimand), which enforces personnel policies and performance standards. Again, however, the actual use of this disciplinary authority varies greatly from the lowest rank (corporal) to the highest rank (staff sergeant) at issue here. In summary, an evaluation of 966(1) does not support a conclusion that all positions in the proposed supervisory unit are the type of "true" supervisors at risk of such conflict with those they supervise that separation is mandated. The staff sergeants, perhaps, have the best claim to supervisory conflict, but they are only a small part of the unit which is proposed to be severed. The hearing examiner has also considered the testimony of various witnesses about actual and hypothetical conflict that arises between the supervisory positions and the CO's. In testimony, the conflict concerns seemed to fall into two categories: (1) that a supervisor would feel hesitant to discipline a subordinate who was in that supervisor's bargaining unit (particularly a subordinate who was a union officer or representative) and (2) that a supervisor would give discipline to a subordinate, the subordinate would grieve the discipline and the supervisor could not rely on the union to represent both the subordinate and the supervisor. The witnesses produced few actual examples of either "type" -31- _________________________________________________________________ of conflict. Lt. Sparkowich testified to an incident where he gave a subordinate discipline and then, as shop steward, was asked to file the subordinate's grievance of his discipline. (Tr. 37). This was a very unusual incident, however, and could have been easily remedied by having another shop steward or the business agent file the grievance. Staff Sergeant Breton, although having a lengthy history of supervisory positions, could think of no example of a specific supervisory conflict that he has encountered (Tr. 48). He has issued perhaps five to eight written reprimands in his years as a supervisor; none has been grieved that he could recall (Tr. 74). Sergeant Moore, with three years of supervisory experience, has experienced no actual incidents of conflict (Tr. 207). Corporal Vail expressed concern about disciplining subordinates who were union members and having subordinates want union representatives present for even minor types of discipline (Tr. 183, 190). However, he has only served as a corporal for two months, after nine years as a CO. In addition, some of his concerns would be shared by any supervisor in a unionized work place - the supervisor must comply with the collective bargaining agreement in administering discipline and is always "at risk" of having the discipline questioned or grieved. Even theoretical concerns of supervisory conflict are important in a unit determination matter. As the present matter is a severance petition relating to a bargaining unit of long- standing, however, actual examples of conflict within the unit would better support a finding of lack of community of interest. There were few given in testimony here, despite the extensive supervisory experience of some of the witnesses. Considering both the criteria contained in 966(1) and the testimony regarding supervisory conflict, the hearing examiner finds that the supervisory positions perform work sufficiently similar to -32- _________________________________________________________________ the work performed by the other bargaining unit positions (particularly the corrections subordinates) that a community of interest exists between these positions. (2) Common supervision and determination of labor relations policy. All of the positions in the bargaining unit, including the supervisory positions at issue, are supervised by positions within the chain of command. All of the bargaining unit positions in corrections report ultimately to a lieutenant or to the captain of operations and security or to the captain of administration and support. All of the bargaining unit positions in field services report ultimately to a lieutenant or to the communications captain or to the criminal investigation captain. The employees of both divisions ultimately report to the chief deputy, and then to the sheriff. The labor relations policy is uniform for the positions, based upon the collective bargaining agreement and county personnel policies. This factor supports a finding of community of interest between the positions in the bargaining unit. (3) Similarity in the scale and manner of determining earnings. All of the positions in the bargaining unit are paid on an hourly basis, on a pay grade/step system. Wages are also subject to overtime and longevity provisions of the agreement. The positions in the unit are all placed in a total of five pay grades. In 2002, the pay range for a grade 2 position (for example, a corrections officer I) is $12.41 - $15.33 per hour; the pay range for a grade 6 position (for example, the staff sergeant-intake supervisor) is $13.99 - $17.47 per hour. The supervisors, particularly, are scheduled to receive larger hourly wage increases than the other bargaining unit members in the last two years of the current agreement which expires on December 31, 2004. While the pay between certain positions differs to a -33- _________________________________________________________________ significant degree, there is similarity is scale and manner of determining earnings, and this has been true through numerous collective bargaining agreements for this unit. This factor supports a finding of community of interest between the positions in the bargaining unit. (4) Similarity in employment benefits, hours of work and other terms and conditions of employment. The employment benefits and other terms and conditions of employment for positions in the bargaining unit are the same as defined by the collective bargaining agreement. The parties did not present evidence regarding the hours of work. Article 16 of the agreement indicates that there is uniformity of hours of employment for all positions covered by the agreement, except for the dispatchers who work a unique schedule. This factor supports a finding of community of interest between the positions in the bargaining unit. (5) Similarity in the qualifications, skills and training of employees. Because the jobs in the bargaining unit are so diverse, the specific qualifications, skills and training expected of the employees are equally diverse. The supervisory positions at issue share many of the same qualifications as the CO's. All of the supervisory positions and the CO positions require a high school education and completion of the MCJA basic corrections course (CO's must complete the course in the first year of employment). The supervisors must have additional supervisory experience commensurate with their position in the chain of command. It is not necessary for the nature of work and qualifications, skills and training required of various positions to be identical in order to be placed in the same bargaining unit. As the executive director noted in Auburn Education Ass'n/MTA/NEA and Auburn School Committee, No. 91-UD-03, slip op. -34- _________________________________________________________________ at 11 (MLRB Feb. 27, 1991): "Inherent in the existence of separate job classifications is a difference in the specific work assignment of each classification; however, such differences do not preclude the inclusion of various classifications in the same bargaining unit." New bargaining units have been created after unit determination hearing with similarly divergent jobs.[fn]5 In any event, the issue here is not whether the diverse positions in the Sheriff Department bargaining unit share a community of interest - the unit has existed a long time despite its diversity of positions. The issue here is whether the supervisory positions require such unique qualifications, skills and training to make them a distinct group that no longer shares a community of interest with the bargaining unit. That is not the case here. (6) Frequency of contact or interchange among the employees. Again, the present bargaining unit contains diverse positions. Some employees in the unit (in communications) work in a separate building and have no routine communication or interchange with employees in the jail. The supervisory positions at issue have the most contact with the positions both above and below them in the chain of command. These positions likely have more contact with each other than other positions in the bargaining unit. There is nothing about this criteria which would support a finding of a lack of community of interest between the supervisors and the remaining positions in the bargaining unit. ____________________ 5 See, e.g., Granite City Employees Ass'n and City of Hallowell, No. 01-UD-04 (MLRB May 23, 2001) (approving unit consisting of deputy city clerk, code enforcement officer, janitor, deputy police chief, police officers, highway foreman, equipment operators and laborer); East Grand Teachers Ass'n/MTA/NEA and MSAD No. 14 Board of Directors, No. 92-UD-01 (MLRB Oct. 1, 1991) (approving unit consisting of teachers' aides, school secretaries, food service director, bus drivers and custodians). -35- _________________________________________________________________ (7) Geographic proximity. See discussion in section (6), above. (8) History of collective bargaining. This criterion, as discussed earlier, is an important one in considering a petition for severance. Past hearing examiners have examined various aspects of the collective bargaining history in evaluating this criterion in severance petitions. See Teamsters Local No. 48 and County of Cumberland, No. 84-UD-11 (MLRB Mar. 16, 1984) (length and stability of bargaining relationship; participation in union affairs by bargaining unit members seeking severance; the offering of special proposals for the group at bargaining table; whether unit created by agreement); Teamsters Local No. 48 and City of Portland, No. 81-UD-10 (MLRB July 10, 1981) (adequacy of union representation in grievances; length and stability of bargaining relationship; the offering of special proposals for the group at bargaining table); Teamsters Local No. 48 and State of Maine (Institutional Services Unit), No. 83-UD-25 (MLRB Jan. 10, 1984), aff'd, No. 84-A-02 (Apr. 2, 1984) (same).[fn]6 ____________________ 6 Past hearing examiners have relied on National Labor Relations Board precedent in finding that the history of collective bargaining and adequacy of representation are important considerations in severance petitions: "The adequacy of representation by the incumbent bargaining agent is an important factor in the NLRB's consideration of severance petitions. See, e.g., Bendix Corp., 227 NLRB 1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-5 (1976). The NLRB holds, however, that 'a union that does not accede to all demands made upon it by the unit seeking to be severed cannot be accused of inadequately representing that unit based on that fact alone.' Firestone Tire and Rubber Co., 223 NLRB 904, 906 (1976). A number of factors are considered, including whether members of the proposed unit have participated in the affairs of the incumbent union by acting as stewards and bargaining team members, and whether any special provisions affecting the interests of the proposed unit have been included in bargaining agreements. Bendix Corp., 227 NLRB at 1537; Beaunit Corp., 224 NLRB at 1504." Teamsters Local No. 48 and State of Maine (Institutional Services -36- _________________________________________________________________ In the present matter, the parties have had a lengthy history of collective bargaining, over 20 years. The county's long-time representative testified that the parties have had good labor relations and have had not problems negotiating agreements despite the diverse jobs in the bargaining unit. (Tr. 101, 107- 108). The parties have needed only limited third-party intervention in settling agreements. The most recent agreement was reached after interest-based bargaining, with no third-party assistance; it was ratified by an overwhelming majority amongst union members. The union has represented supervisory employees equally in grievance matters. The union has been particularly successful in cases brought to arbitration in the last few years. In addition, some of the supervisory employees have been very active in union affairs. The chief negotiator for the union in this most recent agreement was a corporal who was praised extensively in the testimony for her preparation and performance as a negotiator. Lt. Sparkowich, who has held all three supervisory positions at issue here, was for years very active in the union and an effective shop steward. Other supervisory employees, such as the petitioner, have not been active at all in the union. The supervisory employees who have been unhappy and sought severance have done very little to bring their concerns to the union's attention. They only first made their desires known in 2000. The supervisory employees in the unit have never sought any special provisions in the current or past agreements. The supervisory employees have not, in the test used by the NLRB, "established and maintained a separate identity" from the non- supervisory employees in non-supervisory positions in the bargaining unit. Mallinckrodt Chemical Works and IBEW, Local No. 1, 162 NLRB at 397. _______________ Unit), No. 83-UD-25, slip op. at 14 (MLRB Jan. 10, 1984), aff'd, No. 84-A-02 (MLRB Apr. 2, 1984) -37- _________________________________________________________________ There was some testimony regarding the adequacy of the union's representation, particularly on the issue of obtaining special pay raises to distinguish the pay of the supervisors from the corrections officers (a raise in addition to the distinction between pay grades). Several witnesses testified that this was a prime source of dissatisfaction amongst some supervisors in recent years, and likely the genesis of the idea that the supervisors should sever from the larger bargaining unit. In the present agreement, the scale for all employees is increased by three percent and $1.00 per hour in the first year of the agreement; the supervisory employees are given a separate and sizeable raise in the second and third years of the agreement. The supervisors who testified are all well-satisfied with these coming wage increases. The specific proposal resulting in these wage increases was made by the employer, and was essentially adopted through the bargaining procedure. The union proposed across-the-board raises and a change in scale to reflect years of service. The hearing examiner is loathe to conclude from this, however, that the union's representation of the supervisory employees was inadequate during the bargaining that led to this agreement. The collective bargaining process is too complicated to conclude from these bare facts that the employer was the only party who made the supervisory wage increase "happen." The union was required to represent all members of the bargaining unit in the negotiations, and certainly did not oppose the supervisory wage increase. Other than this, it is difficult to conclude that one party or the other was responsible for the increase, which was part of the over-all give and take of bargaining. At least one witness also expressed discontent about the fact that individuals who held the positions that became staff sergeant positions were required to compete for their own jobs (and were all chosen for the newly-created positions). The -38- _________________________________________________________________ union's Executive Board sought the competitive selection process. Again, however, the hearing examiner cannot be certain that the union was solely responsible for the competitive process being used; this was part of the give and take of mid-term negotiations over these positions. The negotiated process for filling vacancies for these positions will remain for the benefit of other supervisory employees, even after the incumbents to these positions have left the positions. The union's position in the matter did not amount to inadequacy of representation of the supervisory employees. In sum, a consideration of the history of bargaining here strongly supports a conclusion that a community of interest exists between the supervisors and the remainder of the bargaining unit, and that severing the supervisory unit would undermine a bargaining relationship which has been long, stable and generally fruitful for both sides. (9) Desires of the affected employees. The parties agreed in a prehearing conference that affidavits signed by supervisory employees who either supported or opposed the severance petition could be admitted into evidence, in lieu of testimony on this issue. MACJP offered six affidavits supporting the petition (including one signed by petitioner Steve Breton) (MACJP Exh. Nos. 1 - 6); AFSCME offered twelve affidavits opposing the petition (AFSCME Exh. Nos. 1 - 12). Three supervisory employees signed an affidavit both supporting and opposing the petition; in each case, the opposing affidavit was signed on a later date than the supporting affidavit. Therefore, a total of 15 supervisory employees signed an affidavit out of approximately 16 employees in the proposed supervisory unit. A continued hearing was convened to take testimony from these three employees as to their actual desires regarding this petition. All three employees were subpoenaed by AFSCME; two employees came to the continued hearing -39- _________________________________________________________________ and testified. From this testimony, it could be surmised that the individuals collecting both affidavits in support of and in opposition to the severance petition were not above disseminating a certain level of misinformation or hyperbole in seeking signatures. This, in turn, cast doubt on how much reliance the hearing examiner should place on the affidavits as a whole. On the other hand, the two witnesses at the continued hearing made one thing very clear - they both want the raise they will receive under the current collective bargaining agreement and do not want to sever from the bargaining unit if this might jeopardize the pay raise (Tr. 181, 194). Similar reasoning might have caused other supervisory employees to sign the affidavits in opposition as well. Even taking this information into account, it cannot be denied that AFSCME was able to procure more affidavits in opposition than MACJP was able to procure in support. Eliminating those three affidavits signed both in opposition and in support, MACJP procured three affidavits[fn]7 and AFSCME procured nine affidavits. While the hearing examiner has no clear way of knowing the thought processes that went through the minds of the employees who signed these affidavits, it must be acknowledged that the clear majority of those signing only one affidavit do _______________ 7 Of the three MACJP affidavits, two were signed by staff sergeants including the petitioner (there are three staff sergeants presently in the bargaining unit) and it was apparent that Lt. Sparkowich was instrumental in procuring and/or processing the affidavits. The parties are aware that it is the intention of MACJP, if the severance were granted and if MACJP was elected bargaining agent for the severed supervisory employees, lieutenants (currently unrepresented) could be merged with this unit. The employer is more or less in favor of this more-encompassing supervisory unit (See, employer's letter of response to petition for severance, filed November 20, 2001). The employees testifying at the continued hearing were aware of the potential that lieutenants could become part of this unit (Tr. 194, 205). This all suggests that the supervisors higher in the chain of command are the ones most clearly in favor of this severance petition. -40- _________________________________________________________________ not favor severing the supervisory unit. While this is only one factor in the community of interest factors, it is certainly an important consideration when deciding whether to break up a functioning bargaining unit. (10) Extent of union organization. This criterion is not particularly valuable in evaluating a severance petition. The Sheriff's office has two large organized bargaining units, the present one represented by AFSCME and the patrol unit represented by the Teamsters, in addition to numerous employees who are not represented for purposes of collective bargaining. One small group of unrepresented lieutenants has also petitioned the Board for a unit determination and bargaining agent election (with the MACJP as the prospective bargaining agent). The MACJP, who wishes to represent the supervisory employees if they are severed, is, as far as the hearing examiner is aware, a new organization (although obviously connected with the Maine Association of Police). If the supervisory unit were to be severed, the extent of union organization would remain the same in the Sheriff's office. (11) The employer's organizational structure. A review of the employer's organizational charts does not, in itself, support the conclusion that the supervisory positions at issue form a distinctive or separate group. Because of the diversity of the positions in the bargaining unit, the supervisors are not all employed in the same division. Some staff sergeants supervise no one of rank; other staff sergeants do. Some staff sergeants report to lieutenants; other staff sergeants report directly to captains. In short, there is not one simple chain of command with the supervisory employees in a clearly-defined section of that chain. This factor supports a finding of community of interest between the positions in the bargaining unit. In conclusion, a review of the community of interest factors -41- _________________________________________________________________ do not support a finding that the supervisory positions in the Sheriff Department bargaining unit no longer share a community of interest with the remaining positions in the unit. While the supervisory nature of their jobs may place them in some conflict with the employees that they supervise, the actual conflicts within the unit have been limited and few. In addition, the extent of actual supervisory authority as described in 26 M.R.S.A. 966(1) varies a great deal within the supervisory unit proposed to be severed, from the corporal to the staff sergeant. This is one of the most significant differences between this matter and Teamsters Local No. 48 and County of Cumberland, where the patrol positions were severed from this same bargaining unit - the patrol positions were much more distinct and dissimilar from the remaining positions in the unit than the supervisory positions are from the unit as it is now configured. If this were an initial unit determination petition, the supervisors may have been placed in a separate bargaining unit. This is not an initial unit determination petition, however, but a petition to sever these positions out of a bargaining unit that has had a long and generally fruitful collective bargaining history with the employer. The supervisors have not held themselves out or acted as an entity separate from the other positions in the bargaining unit. AFSCME has adequately represented all positions in the unit, including the supervisors. The issue of most concern to the supervisors - a separate and higher pay scale from the CO's - is a reality under the present collective bargaining agreement. Considering all of these factors, the hearing officer cannot find that these positions should be severed from the bargaining unit. -42- _________________________________________________________________ CONCLUSION The petition for unit determination filed on October 31, 2001, by Steven Breton on behalf of the Corporals and Sergeants, Cumberland County Sheriff's Office, seeking the severance of a unit of corporals and sergeants from the Sheriff's Department bargaining unit, is denied. These positions will remain as part of the presently-configured bargaining unit. The part of the petition seeking a decertification/bargaining agent election for this unit of corporals and sergeants will not be acted upon further by the Board. Dated at Augusta, Maine, this 31st day of May, 2002. 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. 968(4), 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. -43- _________________________________________________________________ SHERIFF CHIEF DEPUTY [Fiscal office: Receptionist clerk; Administrative secretary] FIELD SERVICES DIVISION Captain - communications Captain - field services Captain - criminal (Patrol) investigation Communications sergeant Lieutenant Dispatchers Civil deputies Crime analysts Complaint officers CORRECTIONS DIVISION Jail Administrator Captain - operations and security Captain - administration and support Shift lieutenants Intake supervisor (Staff sergeant) Sergeants Intake sergeants Corporals Intake officers Corrections officers Property officer Records clerk Lobby officers Receptionist Education coordinator Education technician Transport supervisor (Staff sergeant) Transport officers Lieutenant - community corrections Vocational teacher Recreation officer Education technicians Trustee coordinator Work release officers Community service officers Electronic monitoring officer Food service supervisor (Staff sergeant) Cooks [Note: Bargaining unit positions are in italics] - Appendix A -