Case No. 07-UDA-01
Issued: January 16, 2007








                       PROCEDURAL HISTORY
     This unit determination matter began when Teamsters Union
Local 340 ("Teamsters" or "union") filed a unit determination/
bargaining agent election petition with the Maine Labor Relations
Board ("Board") seeking a determination that certain positions
employed by the County of Cumberland ("County" or "employer")
comprised an appropriate bargaining unit for purposes of
collective bargaining.  By agreement of the parties, the
Teamsters effectively withdrew the petition on behalf of certain
positions, and continued to seek a bargaining unit consisting of
a single job classification, Cook II's (five employees).  The
County contended that these employees should not be placed in
their own bargaining unit, but should instead be placed in a
larger, existing jail division bargaining unit, represented by a
different bargaining agent (American Federation of State, County
and Municipal Employees - AFSCME).  This was and is the sole
matter of dispute between the parties in this matter.
     In order to expedite the Board's consideration of this
dispute, the parties signed stipulations relating to all facts
relevant to this matter.  The parties stipulated that based upon
MLRB precedent and based upon their agreement that a community of
interest exists amongst the Cook II's, the executive director 
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would approve the creation of a bargaining unit of Cook II's.  
The executive director subsequently adopted the stipulations as
the unit determination report in the matter, creating a
bargaining unit of Cook II's.  As part of the stipulations, the
County filed its appeal from this report, in compliance with
Chap. 11, § 30 of the Board Rules.

     Teamsters Union Local 340 is a public employee organization
within the meaning of 26 M.R.S.A. § 962(2); the County of
Cumberland is a public employer within the meaning of 26 M.R.S.A.
§ 962(7).  The jurisdiction of the Maine Labor Relations Board to
hear this appeal and to render a decision herein lies in 26
M.R.S.A. § 968(4) of the Municipal Public Employees Labor
Relations Law ("MPELRL").  The subsequent references in this
decision are all to Title 26, Maine Revised Statutes Annotated.
     The sole issue presented here is whether the Board should
uphold the determination of the executive director (based upon
the stipulations of the parties) that a bargaining unit
consisting of Cook II's is appropriate for purposes of collective
bargaining.  The Teamsters argue that the determination should be
upheld; the County argues that this group of employees should be
placed in an existing jail division bargaining unit that is
represented by AFSCME.
     In most disputes regarding bargaining unit configuration,
the parties are unable to agree whether the employees are public
employees as defined by § 962(6) and/or whether the employees
share a community of interest as defined by § 966(2) and Chap.
11, § 22(3) of the Board Rules.  In the present matter there is
no dispute about either of these issues.  The parties have
stipulated that the Cook II's are public employees as defined and 

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that they share a clear and identifiable community of interest.
     The Board has long held that the existence of a community of
interest is the foundation of an appropriate bargaining unit.  As
we have explained:

     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, at 4 (MLRB Oct. 17,
1979).  In determining whether employees share the requisite
community of interest, 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, § 22(3) of the Board Rules.  It is these factors that
the parties have stipulated exist amongst the employees in the
proposed bargaining unit.
     The employer here argues that while a community of interest
exists amongst the Cook II's, a community of interest also exists
between the Cook II's and the various employees in the existing 

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jail division bargaining unit, and that placing the Cook II's in
that larger, more "wall-to-wall" unit is the preferred unit
placement for these employees.  The outcome proposed by the
employer would be contrary to several well-established lines of
MLRB precedent.  First and foremost, the Board has long held that
the employees' guaranteed right to full freedom in the exercise
of their representational and bargaining rights is best protected
when the Board considers first the bargaining unit as proposed by
the employees, only rejecting such if no community of interest is
established.  Based upon this tenet, the Board has found that the
hearing examiner's duty is to "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, at 4 (MLRB May 29,
1987) (rejecting the employer's request that the unit proposed by
the employees be split into two units, along the employer's
divisional lines).  There are numerous Board cases following this
tenet.[fn]1  The Board has also found that the employees' right
to self-organization is best protected when their judgment on the
appropriate unit is respected, as long as the positions share the
requisite community of interest.  Portland Administrative
Employee Ass'n and Portland Superintending School Committee,   

[footnote] 1 Granite City Employees Ass'n and City of Hallowell, No.
01-UD-04 (MLRB May 23, 2001)(wall-to-wall municipal unit petitioned
for and approved; employer's argument to create four separate
bargaining units rejected); Lewiston Food Service Managers/MEA/NEA and
Lewiston School Committee, No. 99-UD-10 (MLRB May 27, 1999)(food
service managers unit petitioned for and approved; employer's argument
that the managers should be placed in the food service workers unit,
even though the employer and the bargaining agent for the workers unit
had agreed to remove the managers from that unit over ten years
before, rejected); MSAD No. 48 Teachers Ass'n and MSAD No. 48, No. 97-
UD-03 (MLRB Dec. 23, 1996)(wall-to-wall educational support unit
petitioned for and approved; employer's argument to create two
separate bargaining units rejected); East Grand Teachers Ass'n/MTA/NEA
and MSAD No. 14 Board of Directors, No. 92-UD-01 (MLRB Oct. 1,
1991)(same; employer's argument to create separate bargaining units
for each classification rejected).

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No. 86-UD-14, at 28, aff'd, No. 87-A-03 (MLRB May 29, 1987).  The
Portland Administrative case is particularly instructive here as
it is the only unit determination found by the Board in which
some employees in the petitioned-for unit were placed in three of
the seven existing bargaining units, while the remaining ten
employees were placed in a separate, new "residual" unit. 
However, the placement of employees in existing units was only
considered after the hearing examiner found that a community of
interest did not exist amongst all of the employees in the
originally-proposed unit.  Further, the same bargaining agent
represented the employees in the units where some of the
employees were placed, therefore not raising the troubling
representational issues present in this matter.
     Second, a fundamental right protected by the MPELRL is the
right of public employees to join labor organizations of their
own choosing.  This right is explicitly stated in both § 961
(Purpose) and § 963 (Right of public employees to join labor
organizations).  Section 967, which provides for the manner of
determining the bargaining agent, also makes clear that employee
choice must be respected.  For instance, § 967(1) provides that
the employer shall grant voluntary recognition to a public
employee organization that can demonstrate majority support in
the proposed unit.  Section 967(2) provides that an election
shall be conducted upon signed petition of at least 30% of the
public employees that they desire to be represented by the
organization; the ballot in such election shall contain the name
of that organization and any other organization showing written
proof of at least 10% representation of the unit employees.  The
organization receiving the majority of votes of those voting
shall be certified as the bargaining agent.  In the present
matter, the union has provided showing of interest cards signed
by a sufficient number of Cook II's authorizing the Teamsters to
act as their bargaining agent; there is no proof in this record 

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that any of the Cook II's wish to be represented by AFSCME. 
Indeed, the collective bargaining history of the jail division
bargaining unit -where only eight years ago, the Cook II's and
several other classifications petitioned to be severed from the
unit, the employer and AFSCME agreed to sever all the petitioning
positions, and AFSCME disclaimed representing those positions -
strongly suggests that the Cook II's do not wish to be
represented by AFSCME in that unit.  Therefore, it would be
contrary to the fundamental right of choice as expressed in the
MPELRL to place the Cook II's in the jail division bargaining
unit, particularly in the circumstances presented here.
     Finally, while the Board has expressed concern with the
proliferation of small bargaining units, it has not been in
circumstances similar to the present matter.  The Board's
rationale behind its "non-proliferation policy" has been oft-

     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

MSAD No. 43 and MSAD No. 43 Teachers Ass'n, No. 84-A-05, at 4-5
(MLRB May 30, 1984).  This policy has developed primarily around
the placement of supervisors in the same bargaining unit as the
rank-and-file employees whom they supervise; the Board's policy
has been to include supervisors in rank-and-file units rather
than to establish one- or two-person bargaining units.  SAD No.43,
supra, at 4.  We have explicitly declared, however, that the
savings of larger units should not be "exalted" over the
statutory right of employees to be included in a unit with other 

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employees with whom they share a clear and identifiable community
of interest.  Portland Superintending School Committee, supra,
No. 87-A-03, at 5 (creating ten-person residual bargaining unit,
the eighth unit in the workplace).  Small units have often been
approved, without reference to the non-proliferation policy, when
the employees petitioned for a small unit.  See, e.g., York
County and MSEA, No. 04-UD-04, aff'd 04-UDA-01 (MLRB Oct. 8,
2004) (unit of two, deputy registrar of probate and of deeds,
approved); Town of Kennebunk and Teamster Local Union No. 48, 
No. 82-UD-33, aff'd No. 83-A-01 (MLRB Oct. 4, 1982) (unit of
three police lieutenants and corporals approved); Town of
Fairfield and Teamsters Local Union No. 48, No. 78-UD-42, aff'd
No. 78-A-08 (MLRB Nov. 30, 1978) (unit of three, deputy
treasurer, tax collector and social worker, approved).  Similarly
here, the Cook II's have petitioned for the creation of a small,
separate unit; the Board's non-proliferation policy does not
undermine the creation of such a unit in these
     In summary, it would be a significant departure from Board
precedent to deny the creation of a small bargaining unit as
petitioned for by the employees, and to place those employees in
a larger, existing unit.  This is especially true when the
affected employees have signed no showing of interest in being
represented by the bargaining agent for the larger unit.
     One further argument of the employer's will also be
addressed.  The employer urges that the Board utilize National
Labor Relations Board precedent regarding accretion and, upon
this basis, add the Cook II's to the jail division bargaining
unit (Employer's Brief at 3-4).  If such a procedure were used
here, the Cook II's would be added to the larger unit and would 

[footnote] 2 It should also be noted that at least one of the four
bargaining units presently organized in Cumberland County is also quite
small - the corrections supervisor unit - with four classifications and
six employees when it was created in 2006.  This unit was created by
the agreement of the parties.

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be represented by the bargaining agent of that unit (AFSCME)
without further process or election.  The Board finds that the
NLRB accretion precedent is inapposite to the facts presented
     An accretion is the addition of employees to an existing
bargaining unit where these additional employees share a
sufficient community of interest with unit employees and have no
separate identity.  The additional employees are then absorbed
into the existing unit without first having an election and are
governed by the unit's choice of bargaining representative.
Consolidated Papers v. NLRB 649 F.2d 754, 756-777 (7th Cir. 1982). 
The accretion doctrine is applied restrictively since it deprives
employees of the opportunity to express their desires regarding
membership in the existing unit.  Staten Island University
Hospital v. NLRB, 24 F.3d 450, 454-455 (2d. Cir. 1994).       
The National Labor Relations Act provides that the Board shall
designate an appropriate unit for bargaining to secure employees
the fullest freedom in exercising their rights.  The NLRB
balances individual freedom against the need for efficiency and
stability in bargaining when determining an appropriate unit. 
But as the statute expressly dictates, employee freedom must be
paramount.  Sheraton-Kauai Corp. v. NLRB, 429 F.2d 1352 (9th Cir.,
     The NLRB has a well-developed accretion policy because a
variety of situations occur in the private sector which result in
operations where employees represented by rival unions begin to
work together or where represented and unrepresented employees
begin to work together (the most typical examples being mergers,
acquisitions, opening of new plants, facilities, and stores,
etc.).  Only under such "compelling conditions" does the NLRB
apply the doctrine, foreclosing as it does the employees' basic
right to select their bargaining representative.  Boire v.
International Brotherhood of Teamsters, 479 F.2d 778, 796-797  

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(5th Cir. 1973).  There is nothing about the facts of this matter
which would "compel" us to place the Cook II's in the jail
division bargaining unit:  the positions are not new, nor are the
positions newly-merged with the jail division function.  Further,
and as stated before, the fact that these positions were
previously in the jail division unit and successfully sought to
be severed from that unit adds greatly to the conclusion that
this is not a factual situation where this Board should "accrete"
these positions back into that same unit.
     Finally, accreting these positions back into the jail
division unit would arguably violate the well-reasoned conclusion
reached in Mountain Valley Education Ass'n and MSAD No. 43, 
No. 94-UD-13 (MLRB Nov. 3, 1994) that a group of employees, in
existing positions historically excluded by choice, cannot be
added to a bargaining unit without a sufficient showing of
interest from the employees to be added.  In that case, the
hearing examiner analyzed the NLRB accretion precedent, as well
as other states' public sector precedent, to conclude that      
§ 966(2) of the MPELRL prohibits employees who have been histori-
cally excluded from a bargaining unit from being added to that
unit without a meaningful opportunity to vote on whether they
wish to be represented.  Mountain Valley, supra, at 39. 
Accreting the Cook II's into the jail division unit without a 
showing of interest from those employees would violate this sound
     In conclusion, while we sympathize with the employer's
concern about efficiency of operations and negotiations, our
precedent based upon fundamental rights declared in the MPELRL
fully supports a conclusion here that a bargaining unit of Cook
II's be created.  While we might have decided the matter
differently if the Teamsters represented the jail division unit,
such is not the case, and it would trample the rights of
employees to be represented by an agent of their own choosing to
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place them in a unit represented by a different bargaining agent.

     On the basis of the foregoing discussion and pursuant to 
the power granted to the Maine Labor Relations Board by the
provisions of 26 M.R.S.A. § 968(4), it is ORDERED:

     that the appeal of the County of Cumberland, filed with
     respect to the adopted unit determination report in
     Case No. 07-UD-01, is denied and the report is affirmed
     as set forth above.  A bargaining agent election for
     this unit will be conducted forthwith.

Dated at Augusta, Maine, this 16th day of January 2007. 

The parties are advised of their right pursuant to 26 M.R.S.A. § 968(4) (Supp. 2006) to seek a review of this decision and order by the Superior Court. To initiate such a review, an appealing party must file a complaint with the Superior Court within fifteen (15) days of the date of issuance of this decision and order, and otherwise comply with the requirements of Rule 80(C) of the Rules of Civil Procedure.


Peter T. Dawson

Karl Dornish, Jr.
Employer Representative

Carol B. Gilmore
Employee Representative

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