STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 03-UD-10
Issued: September 26, 2003
__________________________________
)
ERIC BELL, )
)
Petitioner, )
)
and )
)
RICHMOND EMPLOYEES ASSOCIATION, ) UNIT DETERMINATION
) REPORT
Certified Bargaining Agent, )
)
and )
)
TOWN OF RICHMOND, )
)
Employer. )
__________________________________)
PROCEDURAL HISTORY
On April 29, 2003, Eric Bell ("Petitioner") filed a Petition
for Decertification/Bargaining Agent Election with the Maine
Labor Relations Board ("Board"). The petition was accompanied by
showing of interest cards signed by police officers employed by
the Town of Richmond. The showing of interest cards indicated
that the police officers wished to be severed from the Richmond
municipal employee bargaining unit, and that they wished to be
represented by the Richmond Police Association rather than the
Richmond Employee Association ("REA" or "Association"). The
petition indicated that the proposed unit would consist of full-
time police officers working for the Town of Richmond.
By letter dated April 30, 2003, the hearing examiner advised
the Petitioner of various insufficiencies in the petition as
submitted. Most of these insufficiencies related to the fact
that the Petitioner did not make clear that he was seeking to
sever the police officers from the existing bargaining unit, by
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seeking a unit determination ("severance"), as well as a
decertification/bargaining agent election. The Petitioner was
given 15 days from the service of the notice of insufficiencies
to file an amended petition. On May 7, 2003, the Petitioner
filed an Amended Petition for Unit Determination and
Decertification/Bargaining Agent Election with the Board.
On May 8, 2003, copies of the amended petition were served
upon the Town of Richmond and upon the REA, by facsimile
transmission and by regular mail. The parties were advised that
a response to the petition was due on or before May 23, 2003.
On May 19, 2003, the Board received a response from Richard
Mersereau, representative of the REA, citing various objections
to the amended petition. On May 21, 2003, the Board received a
response from the Town of Richmond, also citing various
objections to the amended petition.
On June 5, 2003, the hearing examiner, acting as designee of
the Executive Director, issued an Interim Report Regarding
Objections to the Sufficiency of the Amended Petition, which
dismissed some of the objections of the respondents and preserved
other objections to be addressed in the present Unit
Determination Report. This Interim Report is incorporated herein
by reference.
A hearing notice was issued on June 12, 2003, and was posted
for the benefit of affected employees. The hearing examiner
conducted a prehearing conference by telephone in this matter on
July 9, 2003. The Prehearing Conference Memorandum and Order is
incorporated herein by reference.
The hearing was conducted on July 16, 2003. Petitioner
Eric Bell appeared on behalf of himself. Richard D. Mersereau,
labor consultant, appeared on behalf of the Association. Town
Manager David Peppard appeared on behalf of the Town of Richmond.
The parties were afforded full opportunity to examine and cross-
examine witnesses, and to present evidence. The following
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witnesses were presented at the hearing: for the Petitioner,
Richard Alexander, Richmond police officer and Association vice
president, and Jeremy Petty, Richmond police officer; for
the Association, Laurie Bouchard, assistant finance director and
Association secretary/treasurer, Tom Webster, public works
employee and Association president, and Richard D. Mersereau,
Association labor representative. The Town did not present
witnesses. The Association presented written closing argument at
the hearing, and the Petitioner and the Town presented oral
closing argument on the record.
JURISDICTION
The jurisdiction of the hearing examiner to hear this
matter and to make an appropriate unit determination lies in
26 M.R.S.A. 966.
EXHIBITS
The following Association exhibits were admitted to the
record without objection of the parties:
Association Exhibits
1 Richmond Contract (95-97)
2 Richmond Contract (99-01)
3 Richmond Contract (2001-03)
4 Richmond Contract (2003-05)
5 REA Minutes (2-28-94)
6 REA Minutes (4-18-95)
7 REA Minutes (11-20-96)
8 REA Minutes (1-24-97)
9 REA Meeting Notice (8-9-00)
10 REA Minutes (8-17-00)
11 REA Minutes (9-14-00)
12 REA Minutes (3-13-01)
13 REA Minutes (4-23-01)
14 REA Meeting Notice (12-6-01)
15 REA Minutes (12-6-01)
16 REA Meeting Notice (9-5-02)
17 REA Meeting Notice (8-1-02)
18 REA Minutes (8-1-02) [unsigned]
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19 REA Minutes (8-1-02) [signed]
20 REA Minutes (9-5-02)
21 Officer Peppard Memo (9-5-02)
22 REA Minutes (10-21-02)
23 Initial REA Proposal to Town (10-22-02)
24 Proposal #2 (1-10-03)
25 Negotiation History (Nov.-March)
26 REA Meeting Notice (3-13-03)
27 Richmond wage agreement comparison, 1995 and
2005
28 Resume, Richard D. Mersereau
STIPULATIONS
The parties agreed to the following factual stipulations as
part of the prehearing conference:
1. The Richmond Employees Association ("Association") is a
public employee organization that is the certified
bargaining agent for all full-time, permanent employees
of the Town of Richmond, within the meaning of 26
M.R.S.A. 962(2).
2. The Town of Richmond is a public employer, within the
meaning of 26 M.R.S.A. 962(7).
3. The Richmond municipal employee bargaining unit
consists of all full-time, permanent employees of the
police, public works and administration departments.
The following positions are in the bargaining unit:
town clerk, bookkeeper/deputy treasurer/ deputy tax
collector (vacant), police sergeant (vacant), police
officer (3), highway foreman, assistant highway
foreman, highway equipment operator (2), community
development director (vacant), grants administration
department RINOP secretary (vacant), administrative
assistant/deputy tax collector, and deputy finance and
human resource director/office manager.
4. The petition filed by Eric Bell on May 2, 2003, seeks
to create a new bargaining unit consisting of the full-
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time police officers currently in the municipal
bargaining unit and to sever this police unit from
the municipal bargaining unit.
5. The positions to be included in the proposed bargaining
unit are all full-time police officers.
6. There is no contract bar to this petition.
7. The attorney examiner has jurisdiction, as designee of
the Executive Director, to hear and decide this unit
determination matter pursuant to 26 M.R.S.A. 966(1)
and 966(2).
8. During the entire history of the municipal bargaining
unit, each employee department (police, public works,
and administration) has been and is represented on the
executive, negotiating and grievance committees of the
Association.
9. The Association does not agree to the proposed
severance and reduction in size of the municipal
bargaining unit being proposed in the petition.
10. The positions in the proposed bargaining unit (full-
time police officers) share a community of interest,
as defined by 26 M.R.S.A. 966(2) and Board Rule,
Chap. 11, 22(3).
FINDINGS OF FACT
1. The Richmond municipal employees bargaining unit was created
in 1994 following a Unit Determination hearing. On June 14,
1994, the Richmond Employees Association ("Association") was
certified as the exclusive bargaining agent, following
election.
2. The Association and the Town of Richmond ("Town") negotiated
and ratified the first collective bargaining agreement in
1995, which was effective from July 1, 1995, to June 30,
1997. The Association and the Town have negotiated and
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ratified four collective bargaining agreements since
the initial contract.
3. The most recent collective bargaining agreement was ratified
on March 27, 2003, to be effective July 1, 2003, to June 30,
2005.
4. The Association and the Town used the services of a mediator
in negotiating the first two collective bargaining
agreements. The Association and the Town have negotiated
the three most recent collective bargaining agreements
without the use of mediation. The Association and the Town
have not used either fact-finding or interest arbitration to
negotiate any of the five agreements.
5. The labor-management relationship between the Association
and the Town has generally been good. Bargaining unit
members are all empowered under the collective bargaining
agreement to file their own first-step grievances, but only
a few grievances have been filed over the years. Only one
grievance (filed on behalf of a public works employee) has
been taken to arbitration. The Association prevailed in
this arbitration.
6. The police officers have rarely filed grievances. About one
year ago, one police officer filed a grievance because the
Police Chief would not grant him more than the one day off
allowed by the collective bargaining agreement after his
sister-in-law died, because the officer could not secure his
own replacement. The police officer and the Association
president met with the Police Chief and reached an agreement
about how such matters would be dealt with in the future,
which satisfied the concerns of the police officer. This
police officer does not believe that the Police Chief has
fully complied with the agreement, but he has chosen not to
pursue the matter further. Another police officer more
recently filed a grievance about being "shorted" his usual
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scheduled work hours one week. The town manager saw to
it that the police officer was paid for the work hours
he did not get, and this resolved the grievance.
7. The Association representative (Richard Mersereau) has been
the unit's representative since its inception. He has
significant experience in the field of labor relations,
including the representation of police officers in this and
other units (Association Exh. No. 28).
8. There are currently ten persons employed in bargaining unit
positions. All ten employees are members of the Association
and pay $10 per month Association dues.
9. The Association conducts a meeting only once per year, in
years when no collective bargaining agreement will be
negotiated. At this yearly meeting, three Association
officers (president, vice president, and secretary/
treasurer) are elected, and other business is conducted.
The three Association officers make up the executive
committee. More Association meetings are held when
necessary in order to formulate contract proposals, and to
review and ratify a collective bargaining agreement.
10. The policy of the Association is to elect one Association
officer from each of the Town departments represented in the
bargaining unit (police, public works, and administration).
Currently, for instance, the Association president is a
public works employee, the Association vice president is a
police officer, and the Association secretary/treasurer is
the town finance officer. In only one year did the
Association deviate from this policy, when no administration
employee wished to serve as an Association officer. In that
year, public works employees served as both president and
secretary/treasurer.
11. The current Association vice president is a police officer
who has worked for the town since 1999. He has been the
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Association vice president for most of his period of
employment. He has been on the negotiating team for
the last two collective bargaining agreements.
12. The three Association officers make up the negotiating team.
Other bargaining unit members may attend negotiating
sessions, but may not speak. Bargaining unit members other
than the three members of the negotiating team have not
generally attended negotiating sessions. Members of the
negotiating team informally advise their fellow employees
about the on-going negotiations. An Association meeting is
then called to describe the proposed agreement and to vote
on the agreement.
13. Over the years, the Association has negotiated provisions in
the collective bargaining agreements for the exclusive
benefit of the police officers. These provisions have
included minimum compensation for court time and a shift
differential. Both the police officers and the public works
employees wear uniforms. Under past collective bargaining
agreements, the Town has been required to provide the police
officers with uniforms and all required duty gear. The 2001
- 2003 agreement contained, for the first time, a specific
list of the required duty gear and further provided that
damaged, destroyed, lost or worn out items would be replaced
with the approval of the Police Chief. Other provisions
have been negotiated (such as those relating to "comp" time
and education/training adjustments) that, while not for the
exclusive benefit of police officers, have particularly
benefitted the police officers.
14. In the 2001 - 2003 collective bargaining agreement, a
significant increase in wages was negotiated for the police
officers. This was done to bring the Town wages up to
police officer wages in comparable towns, and with the hope
of attracting and retaining police officers. The following
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wage increases were negotiated (comparing the last year
of the 1999 - 2001 agreement with the first year of the
2001 - 2003 agreement): entry, $10.69 to $11.76; after
first year, $10.92 to $12.47; and after second year,
$11.17 to $12.98.
15. Over the course of the five collective bargaining
agreements, the police officers have realized the largest
percentage increase in their wages, when compared to the
wage increases of the other positions in the bargaining unit
(Association Exh. No. 27).
16. In August and September, 2002, the Association held meetings
for the members in order to formulate contract proposals for
the negotiations for the 2003 - 2005 collective bargaining
agreement. On September 5, 2002, one police officer (no
longer employed by the Town) formulated and distributed to
the other Association employees a list of 14 items of
concern to the police officers (Association Exh. No. 21).
Some of these items were of general economic concern to all
bargaining unit members (such as adding an IRA option with
an employer match to employee contribution). Many of the
items were only of concern to the police officers (such as
increasing the shift differential, and having the Town pay
for required items when the officers attended Maine Criminal
Justice Academy training).
17. The Association presented 12 of the 14 police items as part
of their initial contract proposal. The only items not
proposed were Item 9, providing internet access to the
police officers, and Item 13, increasing maximum accumulated
comp time to 100 hours (from 40 hours).
18. The Association was successful or partially successful in
obtaining nine of the 14 police items in the final 2003 -
2005 collective bargaining agreement, as follows:
Item 1 - 50 cents an hour upon completion of the Basic
Law Enforcement Training Program or to be added to the
starting pay of an already certified applicant who is
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hired. The agreement gave the officers 50 cents
per hour upon completion of the program, as an
advance on the next step or contractual raise.
Item 3 - All required items for the Maine Criminal
Justice Academy ("MCJA") (sweat pants, shorts, etc.)
paid for by the Town. The agreement gave the police
officers attending the MCJA a reimbursement for items
up to $150 upon presentation of receipt.
Item 5 - Special detail pay (dances, traffic, etc.) to
be paid at $25 to $30 per hour. The agreement gave the
police officers $30 per hour for special detail work.
Item 6 - Special detail work to be provided on
seniority basis. The agreement provided that the full-
time police officers were to be offered special
assignments on a rotating basis.
Item 8 - Paid membership in a local gym. The agreement
provided that employees would be reimbursed up to $125
per year for membership in a registered fitness
program.
Item 10 - Raising shift differential to 25 - 50 cents
per hour for second shift and to 50 cents - one dollar
per hour for third shift. The agreement provided for
an increase to 30 cents per hour for second shift and
45 cents per hour for third shift.
Item 11 - Adding an employer match contribution of 80
percent to any employee contribution to retirement IRA.
The agreement provided for three percent employer
match, in addition to the $500 per year employer
contribution already provided in previous agreement.
Item 12 - Full health insurance for employee and
employee's family. The agreement added language to the
existing cafeteria plan that gave employees who opted
for family coverage 50 to 75 percent of the cost of
that family coverage.
Item 14 - Pay scale increases for police officers as
follows: entry from $11.76 to $12.00; after one year
from $12.27 to $12.96; after two years from $13.24 to
$13.92. The agreement provided for the following pay
scale increases: entry to $12.16 for 2003 and 2004;
after one year to $13.12 (2003) and $13.52 (2004);
after two years to $13.64 (2003) and $14.04 (2004).
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19. The Association was not successful in obtaining three of the
14 police items in the final 2003 - 2005 collective
bargaining agreement, as follows:
Item 2 -While attending the MCJA, five hours of
overtime or comp time due to the long hours at the
academy.
Item 4 - On call pay - when officer on call, that
officer to be paid half of his/her hourly pay for every
hour on call.
Item 7 - Open shifts to be provided on seniority basis.
20. One of the police officers (still currently employed by the
Town) was particularly concerned that the officers had to
procure their own replacements when they could not work a
shift. This was sometimes difficult to do because of the
limited availability of the reserve officers. However, this
concern was not contained in the written list of 14 items
submitted by the other police officer to the Association for
inclusion in the contract proposals. After negotiations had
begun, the police officer who had this concern raised it
with the Association representative. The representative
advised the police officer that this concern could be
addressed through the grievance process, and that it was too
late to add it to the contract proposals.
21. One of the recently-hired police officers was concerned that
he might damage personal items (such as eyeglasses) on the
job, such as when arresting someone, and he would not be
reimbursed by the Town for this damage. However, he was
hired too late in the negotiation process for this to be
raised at the table.
22. The 2003 - 2005 collective bargaining agreement was ratified
by a majority of the Association membership at a March 13,
2003, meeting. None of the three police officers then
employed voted to ratify the agreement.
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23. In the last few years, there has been considerable turnover
in the position of full-time police officer in the Town.
There are currently three police officers employed by the
Town. One officer was hired in 1999. The other two
officers (one of whom filed the present Petition) were hired
on November 7, 2002, and December 19, 2002, respectively.
24. The three police officers and the Police Chief (who works as
an active police officer) work in three shifts per day to
provide 24-hour police coverage for the Town. The shifts
are rotated between the police officers on a monthly basis.
There are four reserve police officers who are not regularly
scheduled, and who work as replacements only.
25. Some of the police officers are concerned that if they
should ever be required to arrest or charge a fellow
bargaining unit member, this would cause conflict within the
unit.
26. To be hired by the Town as a police officer, an applicant
must have a high school degree and have completed the 100-
hour course at the MCJA. After one year of employment, a
police officer must then complete an 18-week basic law
enforcement course at the Academy to continue employment.
27. The police office is currently located in the same building
as the Town office, which is across the street from the
public works department building. There is considerable
interchange among all the members of the bargaining unit.
28. The police officers first advised the REA representative
that they wanted to sever from the bargaining unit during
the last contract negotiations. The police officers
believed that they could represent themselves, and their
unique interests, better as a separate unit. The REA would
not agree to the severance.
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DISCUSSION
The issue presented by this case is whether the full-time
police officer positions in the Town of Richmond, now a part of
the Richmond municipal employees bargaining unit, should be
allowed to sever from that unit and become a separate bargaining
unit. The Petitioner seeks to elect a new bargaining agent, the
Richmond Police Association, if this severance petition[fn]1 is
granted. The Petitioner argues that the severance petition
should be granted because the police officers do not share a
community of interest with the larger existing bargaining unit,
and that the unique needs of police officers are not always
addressed in the collective bargaining agreement because of the
number of police officers in the bargaining unit (currently,
there are three police officers in a unit consisting of ten
employees). Both the Association and the Town have objected to
the severance, citing a history of good labor-management
relations between the Town and the presently-configured municipal
unit, and a desire that an already-small bargaining unit not be
fractured into two smaller units.
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 Union 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, IAFF, No. 80-A-03
(MLRB July 18, 1980). The Petitioner here has presented a
sufficient petition accompanied by an adequate showing of
interest from Richmond police officers who wish to sever from the
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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
this report.
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municipal unit.
As a unit determination, this matter turns upon an
evaluation of the presence or absence of a "clear and identifi-
able 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
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
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the community of interest factors as a unit determination
petition seeking creation of a new unit, the issues in a
severance petition 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 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
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 MLRB decisions have deemed the
history of collective bargaining to be a "very important" and,
sometimes, the decisive element in severance petitions. Cf.
Teamsters Local Union No. 48 and Town of Winslow and Council No.
74, AFSCME, 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"); Teamsters Local Union
No. 48 and County of Cumberland and Council No. 74, AFSCME, 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
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also finds the history of collective bargaining to be a key
element in determining severance petitions. See 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 Cumberland County Sheriff's Office bargaining
unit that contained both patrol officers and corrections
officers. Teamsters Local Union No. 48 and County of Cumberland
and Council No. 74, AFSCME, supra. 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 Union No. 48 and Council No. 74,
AFSCME and City of Portland, No. 81-UD-10, slip op. at 15 (MLRB
July 10, 1981). The NLRB also 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).
In the present matter, the parties have stipulated that the
police officers, when viewed as a separate proposed bargaining
unit, share a community of interest. This is a logical
conclusion considering most of the community of interest factors
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such as similarity in the work performed, common supervision,
similarity of qualifications and skills, and frequency of
contact. The question here remains, however, whether the police
officers should be severed from the larger municipal unit. This
decision turns on a finding whether the police officers share a
community of interest with the remaining positions in the larger
existing bargaining unit. Below, the hearing examiner will more
fully discuss each community of interest factor as it relates to
this ultimate question.
(1) Similarity in kind of work performed. This factor
(along with the "history of collective bargaining" factor) is key
to the present determination, judging by the evidence and
arguments presented by the parties. The municipal unit here is a
typical "wall-to-wall" unit, meaning that positions in the unit
perform very different duties on a day-to-day basis. The duties
of a police officer are clearly different from the duties
performed by, for example, the equipment operator or the town
clerk. The Board has found that the unique duties of law
enforcement personnel can support their inclusion in a separate
bargaining unit, particularly when units are initially created.[fn]2
In Teamsters Local Union No. 48 and Cumberland County and AFSCME,
Council No. 74, supra, the differing duties of patrol officers
and jail custodial officers was an important factor in the
decision to sever the patrol positions into a separate bargaining
____________________
2 For instance, when the bargaining units for state employees
were initially created, a separate bargaining unit was created for
state troopers. Council No. 74, AFSCME and MSEA, et al., No. 75-UD-04
(Sept. 22, 1976), aff'd, No. 77-A-02 (MLRB Jan. 17, 1977). One
rationale cited for creating the separate bargaining unit was the
desire to avoid conflicting loyalties during periods of labor unrest
or acts violative of the state labor relations laws. Council No. 74,
AFSCME and MSEA, et al., No. 75-UD-04, slip op. at 13. This is the
same rationale used by the National Labor Relations Board in creating
separate bargaining units for those employees who provide plant
security and protection in the private sector. While this is a
legitimate concern, it is a decidedly theoretical concern considering
the history of public sector labor relations in this state.
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unit. Cumberland County, No. 84-UD-11, slip op. at 11-12, 16-17.
The Board has recognized, however, that "similar work" does
not mean "identical work." As the executive director has noted
in a previous decision, Auburn Education Ass'n/MTA/NEA and Auburn
School Committee, No. 91-UD-03, slip op. at 11 (MLRB Feb. 27,
1991), aff'd, 91-UDA-01 (MLRB May 8, 1991):
In comparing the nature of the work being performed by
the various classifications under consideration, the
essence or basic type of the functions being performed
is far more important than the details of each
position's work responsibilities. 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.
For this reason, bargaining units with sometimes very divergent
positions are approved by the Board because the essence of the
positions or the goal of the positions share a commonality--such
as supporting the educational process, serving to make City
operations run smoothly for its citizens, or working together to
respond to emergency situations. See, e.g., Granite City
Employees Ass'n and City of Hallowell, No. 01-UD-04 (MLRB May 23,
2001)(approving unit which included deputy city clerk, code
enforcement officer, janitor, deputy police chief, police
officers, highway foreman, equipment operator and laborer); East
Grand Teachers' Ass'n/MTA/NEA and SAD No. 14 Board of Directors,
No. 92-UD-01 (MLRB Oct. 1, 1991)(approving unit which included
teachers' aides, school secretaries, the food service director,
bus drivers and custodians); AFSCME Council 93 and Town of
Sanford, No. 92-UD-03 (MLRB Feb. 21, 1992), aff'd, No. 92-UDA-03
(MLRB May 7, 1992) (approving unit which included the planning
director, the assessor, the code enforcement officer, the
director of highways and sanitation, and the deputy fire chief);
and Bangor Firefighters Ass'n, Local 772 and City of Bangor,
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No. 89-UD-06 (MLRB Jan. 26, 1989) (approving the accretion of a
mechanic to a unit consisting of firefighters, dispatchers and
inspection officers). The employees in the Richmond municipal
unit have a commonality of purpose (ensuring the health, safety
and welfare of the citizens of the town), even though the day-to-
day duties of the positions in the bargaining unit are divergent.
In summary, the duties of the police officers are different
from the duties of the other positions in the bargaining unit.
The same conclusion can be reached regarding all of the
positions, or groups of positions, in the bargaining unit. If
this were a unit determination for a new unit of police officers,
and the police officers petitioned for a unit separate from other
town positions, this factor would be given considerable weight.[fn]3
The hearing officer is convinced from a review of relevant Board
precedent, however, that undue weight should not be given to this
factor when considering a severance petition for an existing
"wall-to-wall" bargaining unit, particularly when that unit has
had a relatively long and successful bargaining history (as more
fully described in factor (8), below). In the context of the
present severance petition, this factor neither supports nor
undermines a finding of a community of interest between the
police positions and the other positions in the bargaining unit.
(2) Common supervision and determination of labor relations
policy. All of the police officers are supervised by the Police
Chief. The parties did not supply further evidence about the
Town "chains of command." Presumably the public works employees
and the town office employees have intermediate supervisors. All
____________________
3 In an initial unit determination decision, the hearing examiner
must determine whether the unit proposed by the petitioner is an
appropriate one, not whether the proposed unit is the most appropriate
unit. Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04,
slip op. at 4 (MLRB June 16, 1980). It must be recalled that when the
Richmond town employees were first organized in 1994, the employees
petitioned for a wall-to-wall unit and the unit was established as
such, largely by agreement.
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Town employees are ultimately supervised by the Town Manager.
The labor relations policy is uniform for all bargaining unit
positions, based upon the existing collective bargaining
agreement and other personnel policies. Since immediate
supervision is not common, but ultimate supervision and
determination of labor relations policy is common, this factor
neither supports nor undermines a finding of community of
interest between the police positions and the other 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 two or three step system (entry, after
one year and, for police officers and the office manager, after
two years). Under the current agreement, the entry level wages
vary from $10.82 (central office staff) to $15.00 (public works
foreman). Wages are subject to various adjustments under the
agreement (shift differential, education/training adjustment,
overtime and compensatory time). Thus, while the pay rate
between certain positions differs to a degree, there is
similarity in the scale and manner of determining earnings, and
this has been true through the five collective bargaining
agreements for this unit. This factor supports a finding of
community of interest between the police positions and the other
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
extensive evidence regarding the hours of work. The police
officers are the only town positions to work on a shift basis.
The witnesses did not identify this difference to be any source
of conflict amongst unit employees. This factor supports a
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finding of community of interest between the police positions and
the other 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. Again, the
parties did not present extensive evidence on this issue. To be
hired as full-time police officers for the town, an applicant
must have completed a basic 100-hour course at the MCJA. Within
one year of hire, a police officer must complete an 18-week law
enforcement course, also at the MCJA. The parties did not
present extensive evidence on the qualifications, skills and
training of the remaining employees in the bargaining unit.
Presumably, the qualifications, skills and training required of
the other employees varies considerably, in keeping with the
variety of positions in this unit. It could be found that the
police officers are a "distinct and homogenous group" separated
by qualifications, skills and training from the other bargaining
unit positions, but the same conclusion could be reached about
the public works employees as a group or the administrative
employees as a group. Cf. Mallinckrodt Chemical Works and IBEW,
Local No. 1, 162 NLRB at 397. As more fully explained in factor
(1) above, this factor neither supports nor undermines a finding
of community of interest in this, a severance petition.
(6) Frequency of contact or interchange among the employees.
The police officers are located in an office in the town hall, in
the same building as the administrative employees. The public
works employees are based in a building across the street. There
is frequent contact and interchange among all the employees in
the unit, due to their proximity and due to the nature of their
jobs. This factor supports a finding of community of interest
between the police positions and the other positions in the
bargaining unit.
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(7) Geographic proximity. See discussion in section (6),
above.
(8) History of collective bargaining. This factor, as
discussed earlier, is an important one in considering a petition
for severance. Past MLRB hearing examiners have examined various
aspects of the collective bargaining history in evaluating this
factor in severance petitions. Corporals and Sergeants,
Cumberland County Sheriff's Office and AFSCME Council 93 and
Cumberland County Commissioners, No. 02-UD-03 (MLRB May 31, 2002)
(length and stability of bargaining relationship; participation
in union affairs by the group seeking severance; the seeking and
obtaining of special proposals for the group at the bargaining
table); Ryan Adams and Teamsters Local Union No. 340 and City of
Waterville, No. 03-UD-02 (MLRB Oct. 28, 2002) (same; also,
adequacy of union representation in grievances); Teamsters Local
Union No. 48 and County of Cumberland and Council No. 74, AFSCME,
supra (same; also, whether unit created by agreement); Teamsters
Local Union No. 48 and Council No. 74, AFSCME 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 Union No. 48 and State of
Maine (Institutional Services Unit), et al., No. 83-UD-25 (MLRB
Jan. 10, 1984), aff'd, No. 84-A-02 (MLRB Apr. 2, 1984) (same).[fn]4
____________________
4 Past hearing examiners have also 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
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In the present matter, the parties have had a fairly lengthy
history of collective bargaining, about ten years. The parties
have negotiated a total of five collective bargaining agreements
and have needed only limited third-party intervention in settling
the first two agreements. In accordance with internal
Association policy, a member of the police department must hold
one of the three Association officer positions. Historically,
one of the police officers has always held the position of
Association vice president. All Association officers sit on the
negotiating committee, as well as on the executive and grievance
committees. Therefore, the police have had ample opportunity to
be involved in all aspects of the Association, particularly
negotiating the contracts, and the police have taken advantage of
this opportunity.
The parties have had a good history of labor relations.
Very few grievances have been filed and, when filed, often have
been resolved at the first step. The Association has taken only
one grievance to arbitration, and prevailed in the arbitration.
The police witnesses testified about two grievances they filed in
the last year. In one case, a police officer was "shorted" eight
hours in a schedule. He filed a grievance, and was paid for the
time he lost. In the other case, a police officer (also the vice
president of the Association) filed a grievance about the need
for the police to find their own replacements, even in times of
pressing family situations. This officer met with the Police
____________________
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 Union No. 48 and State of Maine (Institutional Services
Unit),et al., No. 83-UD-25, slip op. at 14.
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Chief, along with the president of the Association. An agreement
was reached between the Police Chief and the police officer. The
officer testified that he did not believe the Police Chief was
fully complying with the agreement, but he has chosen not to
pursue the matter further. In short, there was no proof that the
police have been inadequately represented by the Association in
the handling of grievances.
The greatest concern expressed by the police officers who
testified was that the unique needs of the police have not been
addressed during contract negotiations. As stated by the
petitioner in the original severance petition, " . . . many
articles of interest particular to police officers will not be
addressed due partly because we have a small vote in the REA and
articles important to police officers are not so important to
town clerks or others not familiar with law enforcement."
As stated previously, a member of the police department has
always sat on the negotiating team. The police officers have
sought and achieved numerous articles in the collective
bargaining agreements that address their unique needs (including,
for example, a shift differential, a detailed list of uniform and
equipment to be supplied by the town, special pay for detail
work, and reimbursement for the cost of items to attend the MCJA
up to $150). This was particularly evident in the negotiations
for the current agreement. In the fall of 2002, when the
Association held meetings to formulate contract proposals, one of
the police officers created a "wish list" of 14 items that the
officers particularly wanted to see addressed during the
negotiations. These items were duly reviewed by the Association,
and most were presented at the table. As more fully described in
the findings of fact, many of these police items were achieved
during the negotiations. Even if the association had not been as
successful as they were in achieving the police items, this would
not have established inadequate representation, given the
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realities of the collective bargaining process.[fn]5
One of the police witnesses testified that the top concern
of the police officers was improving the health and retirement
benefits offered to the employees (Tr. at 7). The Association
was successful in obtaining improved health and retirement
packages in the last negotiations. Concern about these issues is
not peculiar to the police officers, nor does it tend to set them
apart as a distinct group with interests that conflict with the
other positions in the bargaining unit. Another police witness
cited his concern that if he damaged a personal item (such as
eyeglasses) in the line of duty, the town would not reimburse him
for the loss (Tr. at 45). Neither this witness nor the other
witnesses were certain of the town's policy on this issue. In
any event, this officer was hired after the negotiations for the
latest agreement were under way. He has not attempted to bring
this concern to the attention of the Association.
Finally, the Association has been a successful and cohesive
unit for about ten years. All of the positions in the bargaining
unit are members of the Association. The Association is not very
active (meeting only about one a year, except for contract
negotiations), and thus relies extensively on its paid
representative. The Association's representative has extensive
experience in the labor relations field, including representing
police officers in other bargaining units. The petition
identifies the Richmond Police Association (RPA) as the proposed
____________________
5 As the United State Supreme Court has noted:
Inevitably differences arise in the manner and degree to
which the terms of any negotiated agreement affect
individual employees and classes of employees. The mere
existence of such differences does not make them invalid.
The complete satisfaction of all who are represented is
hardly to be expected.
Ford Motor Company v. Hoffman, 345 U.S. 330, at 338 (1953).
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bargaining agent, if this petition is granted and the police
officers become a separate unit. However, the RPA does not yet
exist, and there is no basis upon which to conclude that the RPA
could represent the police officers better or obtain more unique
proposals for the police officers than the Association.
For all these reasons, the history of collective bargaining
strongly supports a finding that a community of interest exists
amongst the present bargaining unit, and that severing the police
officers would undermine a bargaining relationship which has been
relatively long, stable and fruitful for both sides. Accord
Teamsters Local Union No. 48 and Town of Winslow and Council No.
74, AFSCME, No. 84-UD-17, slip op. at 12; Teamsters Local Union
No. 48 and Council No. 74, AFSCME and City of Portland, No.
81-UD-10, slip op. at 18-19.
(9) Desires of the affected employees. As this hearing
examiner concluded in a previous severance case, the desires of
all the employees in the bargaining unit--both the employees who
would become severed and the employees who would remain in the
unit--should be considered in these matters. Both groups of
employees would be "affected," if the present bargaining unit
were to be divided. See Ryan Adams and Teamsters Local Union No.
340 and City of Waterville, No. 03-UD-02, slip op. at 31. As
another hearing examiner stated:
With respect to the desires of the employees who
support the instant petition, it is clear that their
desires cannot transcend other interests of equal
importance. Not the least among these are the
interests of the other employees in the existing unit
and the interest of stability in the collective
bargaining process. The history of collective
bargaining here has spanned 14 years. This arrangement
should not be disturbed lightly, particularly since it
has worked reasonably well - albeit not perfectly.
Teamsters Local Union No. 48 and Council No. 74, AFSCME and City
of Portland, No. 81-UD-10, slip op. at 20.
The evidence here established that the current full-time
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police officers (three employees) all desire placement in a
separate bargaining unit. The desires of the other employees in
the bargaining unit was not as clear. Two employees who
testified at the hearing (a public works employee and the
assistant finance director/office manager) oppose the severance
petition. These employees did not know the desires of the
remaining employees in the bargaining unit, nor was other
evidence of their desires presented.
The police officers are uniform in their present desire to
be severed from the larger unit, and the hearing examiner has
given weight to this. Their desire to be severed seems to be
based, however, upon unrealistic expectations of the collective
bargaining process. As noted earlier, the Association has
obtained a variety of contract provisions that already address
the unique concerns of the police officers. The concerns about
good health insurance and retirement are concerns shared by all
in the unit. It is therefore difficult to find that the desires
of the police officers (not shared by at least some of the
remaining members of the bargaining unit) demonstrates a lack of
community of interest amongst the existing unit. The recent
discontent of the police officers is insufficient to break up a
functioning bargaining unit with a stable and relatively long
bargaining history.
(10) Extent of union organization. This factor is not
particularly valuable in evaluating a severance petition.
The Town has no other organized bargaining units. If the police
officers were severed, there would be two separate bargaining
units represented (possibly) by different bargaining agents. The
severance would otherwise have an unknown effect upon the extent
of union organization in the Town. This factor neither supports
nor undermines a finding of community of interest between the
police positions and the other positions in the bargaining unit.
(11) The employer's organizational structure. As the Town
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has a limited number of employees, this is probably not a
particularly useful factor in evaluating this severance petition.
The bargaining unit is roughly divided into three departments -
police, highway, and administration. Each "department" has only
a few employees. The police report directly to the police chief,
who reports to the town manager. A similar chain-of-command
apparently exists in the other two departments. Considering the
small size of this workplace, the employer's organizational
structure neither supports or undermines the finding of a
community of interest between the police positions and the other
positions in the bargaining unit.
Summary of community of interest factors. In conclusion, a
review of many of the community of interest factors supports a
finding that the police officers share a community of interest
with the positions in the existing bargaining unit. Of
particular importance in this, a severance petition, the
bargaining history of this unit has been a relatively long and
fruitful one. This factor especially distinguishes it from
Teamsters Local Union No. 48 and County of Cumberland and Council
No. 74, AFSCME, supra, the only case known to the hearing
examiner where a severance petition was granted by this Board.
In that case, where patrol officers were severed from a
bargaining unit of corrections officers and support personnel,
the unit had been in existence about two years, with only one
collective bargaining agreement negotiated. Cf. Teamsters Local
Union No. 48 and Town of Winslow and Council No. 74, AFSCME, No.
84-UD-17 (MLRB May 31, 1984) (where petition to sever
firefighters from a bargaining unit consisting of firefighters
and public works employees denied; while job functions were
substantially different, the unit had bargained together at least
ten years, with three collective bargaining agreements
negotiated). While some factors here support a finding that no
community of interest exists between the police officers and the
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rest of the unit (such as similarity in qualifications, skills
and training), these factors would be given more weight if this
were an initial unit determination petition, rather than a
petition to sever. Considering all of the community of interest
factors, the hearing officer cannot find that the police officers
should be severed from the bargaining unit.
Non-proliferation policy. This conclusion is supported by
the Board's policy against the proliferation, through
fragmentation, of small bargaining units. The rationale
underlying the Board's policy against non-proliferation is as
follows:
Small bargaining units must be bargained for and
serviced just as do large bargaining units. The State
is obligated to provide under 26 M.R.S.A. 965 the
same mediation and arbitration services for small units
as are provided for large units. The formation of
small bargaining units among employees in the same
department can thus result in the employer, the union,
and the State expending an amount of time, energy and
money all out of proportion to the number of persons
served.
MSAD No. 43 and MSAD No. 43 Teachers Ass'n, No. 84-A-05, slip op.
at 4, 5 (MLRB May 30, 1984). While this policy has most often
been relied upon to prevent the creation of one- or two-member
bargaining units of supervisors, the policy has also been applied
in the context of severance petitions. See Teamsters Local Union
No. 48 and County of Cumberland and Council No. 74, AFSCME, supra
(creation of severed bargaining unit consisting of 24 employees
allowed; does not contravene anti-proliferation policy);
Teamsters Local Union No. 48 and Town of Winslow and Council No.
74, AFSCME, No. 84-UD-17 (MLRB May 31, 1984) (creation of six-
employee bargaining unit carved from unit of 17 employees denied;
non-proliferation policy considered in addition to community of
interest factors). Here, the petition, if granted, would result
in the creation of two small bargaining units--one three-person
unit and one seven-person unit. While the creation of such small
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units would not absolutely contravene the Board's non-
proliferation policy, the policy lends additional support for the
conclusion here that the police officers should not be severed
from the municipal bargaining unit.
CONCLUSION
The Petition for Unit Determination filed on April 29, 2003,
by Eric Bell, seeking the severance of a unit consisting of the
full-time police officers from the Richmond municipal employee
bargaining unit, is denied. These positions will remain as part
of the presently-configured bargaining unit.
Dated at Augusta, Maine, this 26th day of September, 2003.
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.
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