AFSCME and Penobscot County Sheriff's Department, affirmed by 14-UCA-01

.

 

	
	  				PROCEDURAL HISTORY


		This unit clarification proceeding was initiated on April 27, 
	2012, when James Mackie, staff representative of AFSCME Council 93 
	("AFSCME," or "Union"), filed a Petition for Unit Clarification 
	with the Maine Labor Relations Board ("MLRB," or "Board") for a 
	determination of whether part-time employees should be included 
	in the Penobscot County Sheriff's Department Line Unit Corrections 
	Division pursuant to 26 M.R.S.A. § 966(3) of the Municipal Public 
	Employees Labor Relations Law.  On May 14, 2012, Timothy Pease, 
	Esq., filed a timely response to the petition on behalf of 
	Penobscot County ("County").  A hearing was initially scheduled 
	for December 12, 2012, but was rescheduled by the MLRB for 
	February 27, 2013.  That hearing was again rescheduled by the MLRB 
	for April 22, 2013. A hearing notice was issued on March 5, 2013 
	and posted for the information of the affected employees.  The 
	hearing was conducted on April 22, 2013.  AFSCME was represented 
	by Shawn J. Sullivan, Esq.  The County was represented by Timothy 
	A. Pease, Esq.  The parties were afforded the full opportunity to 
	examine and cross-examine witnesses, and to present evidence.   
	The following witnesses were presented at hearing:  for AFSCME, 
	James Mackie, staff representative of AFSCME Council 93, and Mark 
	Domenech, AFSCME Local President, Corrections Line Unit; and for 
	
	[end of page 1] 
	
	the County, Glenn Ross, Penobscot County Sheriff.  Following the 
	conclusion of the hearing, the parties agreed that they would 
	submit briefs 30 days after receipt of the hearing transcript.  
	The transcript was provided to the parties on May 30, 2013, and 
	briefs received on July 2, 2013.

					JURISDICTION

		Jurisdiction of the executive director of the MLRB or his 
	designee to hear this matter and make a determination lies in 26 
	M.R.S.A. §§ 966(1) and (3).  Any subsequent statutory references 
	in this report are all to Title 26 of the Maine Revised Statutes 
	Annotated unless otherwise noted.

					EXHIBITS

	The following exhibits were admitted without objections of the parties:

	A-1:  Unit Clarification Petition, dated April 27, 2012.

	A-2:  Response to Unit Clarification Petition, dated
		  May 14, 2012.

	A-3:  Second revised Notice of Hearing, dated March 5, 
	      2013.

	U-1:  Collective Bargaining Agreement ("CBA") between
          the County and Penobscot County Line Unit,
          expires 12/31/2013.

	U-2:  Dues authorization cards.

	U-3:  3/1/2012 letter refusing to deduct union dues.

	U-4:  Report of hours worked for part-time corrections
          officers 2011 to present.

	U-5:  Average hours summary.
	
	U-6:  Job description information.

	U-7:  2009- 2013 hours reports.

	[end of page 2]


	U-8:   Hours summary.

	E-1:   Collective Bargaining Agreement between the
           County and Penobscot County Line Unit, expires
           12/31/2010.

	E-2:   Letter from the County to Mr. Mark Ayotte dated
           May 14, 2002.

	E-3:   Fact-finding report by the Maine Labor Relations
           Board.

  E-4:   Supplemental fact-finding report by the Maine
           Labor Relations Board.

	E-5:   Letter from the County dated November 11, 2011,
           to the fact-finding panel of the Maine Labor
           Relations Board.
	
	E-6:   A narrative history of scheduling at the
           Penobscot County Jail.
	
	E-7:   County policy pertaining to extra rules/
           assignments.

	E-8:   Comparison of costs between part-time and full-
           time employees.

	E-9:   Sample line unit schedule (1).

	E-10:  Sample line unit schedule (2).

	E-11:  Report of hours worked for part-time corrections 
           officers.

	E-12:  Line unit contracts proposals.
	
	E-13:  Part-time hours 2011 to February 2013.


					FINDINGS OF FACT

		1.  AFSCME is the certified bargaining agent for the 
	Penobscot County Line Bargaining Unit within the meaning of 
	§ 962(2).
		2.  Penobscot County is a public employer within the meaning of 
	§ 962(2).

	[end of page 3]

		3.  The Penobscot County Line Unit Corrections Division was 
	originally part of the Penobscot Sheriff's Department Employee's 
	Bargaining Unit, which was created in December, 1981.  
		4.  The County and AFSCME filed an Agreement on Appropriate 
	Bargaining Unit on October 19, 2009.  Pursuant to this agreement, 
	the following positions were included in the Line Unit Corrections 
	Division: corrections officers, transport officers, clerical, 
	cooks, and public works officers.
		5.  On May 12, 2011, the National Correctional Employees 
	Union filed a Decertification/Bargaining Agent Election Petition 
	with the Board.
		6.  As the result of the election, which was held on August 
	9, 2011, AFSCME was certified as the bargaining agent for the Line 
	Unit Corrections Division.
		7.  The most recent collective bargaining agreement between 
	AFSCME and the County, which ran from August 5, 2008 through 
	December 31, 2010, states in Article 2, the Recognition Clause, 
	that the "employer recognizes the Union as the sole and exclusive 
	Bargaining Agent for all regular full time County employees in the 
	Unit for purposes of negotiating salaries, wages, hours of work, 
	and all other working conditions for the said employees within the 
	Bargaining Unit." 
		8.  There is no mention in the contract of part-time County 
	employees in the Unit being covered by the CBA.
		9.  Article 17 of the contract in the "Inside Extras" section 
	for the Corrections Division allows "the sheriff or his designee 
	[to] call any qualified employee including part-time employees to 
	perform the work"[,] "after the first 48 hours following notice of 
	the absence."
    	10.  The CBA proposed between AFSCME and the County that would 
	expire on 12/31/13 contained identical language regarding 
	coverage. 
    	11.  On July 26, 2011, AFSCME filed a unilateral Request for 

	[end of page 4]

	Fact Finding with the MLRB.  Although one of the issues raised in 
	this request was "Extra Work," it did not include any reference to 
	an increase in overtime hours by part-time employees alleged by 
	AFSCME in its April 27, 2012, Unit Clarification Petition.
    	12.  The Fact-Finding Report was received by the MLRB on 
	January 9, 2012. Section 8 contained a section on Extra Work, and 
	addressed access to overtime by full- and part-time employees, 
	i.e., in which order overtime will be offered.
    	13.  Section 8 of the Fact-Finding Report recommended that in 
	the case where a vacancy occurred in the "rover" (6-hour) 
	position, that the first such vacancy in any day be offered first 
	to a full-time employee on the rotating overtime list.
    	14.  Any other "rover" positions or other vacancies would be 
	filled by the Sheriff or his designee with any qualified employee, 
	including part-time employees.
    	15.  The Fact-Finding Report did not address an increase in 
	the use of part-time employees and does not appear, from the 
	contents of the report, to have been an issue identified by 
	AFSCME.
   		16.  At hearing, James Mackie, a representative from AFSCME 
	who had taken over negotiations from a previous representative, 
	testified that when he filled out the Petition for Unit 
	Clarification, he determined that the County was expanding the 
	unit with the number and use of part-time employees over the last 
	several years, all of whom were performing the same duties as 
	full-time employees.  
    	17.  Mr. Mackie instructed the employees to sign cards for 
	dues deductions so they could be represented by AFSCME Council 93. 
	As a result, twelve part-time employees filled out dues deductions 
	cards (Exh. U-2).[fn]1 

	1  Two of those cards belonged to persons, Timothy Davis and Ryan 
	Warner, who had no work or hour records in the Union or Employer 
	exhibits.

	[end of page 5]

    	18.  Mr. Mackie testified that he did not define the employees 
	in question as "part-time employees;" rather, he testified that 
	after looking at the hours and the make-up of the group, seeing 
	that they were getting prime shifts and overtime shifts and 
	working side by side with the current union members, in his 
	opinion, he did not feel that these were part-time employees. 
    	19.  On March 1, 2012, the County's attorney wrote a letter 
	notifying the union that it would not recognize or process dues 
	deduction authorizations for the group of twelve employees who had 
	signed cards because they were part-time employees and, therefore, 
	not covered by the collective bargaining agreement.
    	20.  Mr. Mackie acknowledged that the only direct proposal 
	that related to the part-time issue up until this point in 
	negotiations was that part-time employees were being offered 
	preferential treatment for open shifts.
    	21.  Mr. Mackie stated that there was no discussion at the 
	time of fact-finding[fn]2 about including part-time employees in the 
	collective bargaining unit itself.
    	22.  Part-time employees must meet the same minimum 
	qualifications as the full-time employees, including that they 
	must be 21, have a high school diploma or its equivalent, have no 
	serious criminal history or motor vehicle record, and possess a 
	current Maine driver's license.  Preference is given to Certified 
	Corrections Officers.
    	23.  Part-time officers must also meet the same requirements 
	as full-time employees, including successful completion of 
	Department Testing Procedures;[fn]3 successfully passing a full 
	personal, criminal, and motor vehicle background check; successful 
	completion of a physical assessment based on the Departmental 

	2  The negotiating dates were November 16 and December 7 of 2011, 
	and the report was written in January 2012.

	3  These include the employee evaluation, Department oral boards, 
	administrative oral board, polygraph, and physician assessment.

	[end of page 6]

	Functional Job Description; and either present certification as a 
	Corrections Officer from the Maine Criminal Justice Academy, or 
	successful completion of all mandatory levels of the MCJA 
	Corrections Officers training.
    	24.  The average weekly hours worked by part-time employees in 
	2008 were 28.7.  In 2009, the average hours were 31.  In 2010, the 
	average hours were 36.6.  In 2011, the average hours were 26.  In 
	2012, the average hours were 26.2. (U-8).
    	25.  The total number of hours worked by part-time employees 
	in 2008 was 19,550.2. In 2009, the total number of hours was 
	25,800.7.  In 2010, the total number of hours was 26,353.  In 
	2011, the total number of hours was 19,830.3.  In 2012, the total 
	number of hours was 27,132.7. (U-8).
    	26.  Glenn Ross has been with the Penobscot County Sheriff's 
	Department since June of 1977 and has been the Sheriff since 
	August of 2002.
    	27.  As Sheriff, he is responsible for overseeing the 
	corrections officers and also supervises Captain Rick Clukey, who 
	is in charge of the jail.
    	28.  Sheriff Ross was the union chair when collective 
	bargaining came in to the counties, and was at the first contract 
	negotiation when language was inserted referring to the use of 
	part-time employees.
    	29.  Sheriff Ross stated that the use of part-time employees 
	has been continuous over the last 30 years.
    	30.  Sheriff Ross testified that generally speaking, the use 
	of part-timers has not increased or expanded over time with two 
	exceptions.  The first was a jail variance given by the Department 
	of Corrections to the County that ran out in 2009, which allowed 
	the jail to keep more inmates than it had been previously licensed 
	to keep.  The second was when a crisis was reached (no date given) 
	with "force outs," forcing employees to work overtime.  During 
	that time, some employees procured doctors' notes that said they 

	[end of page 7]

	couldn't work overtime, thus causing other employees to face an 
	unfair burden.  That year, rather than have one cycle of hiring 
	part-time corrections workers, labor-management agreed to start 
	having two hiring processes a year. 
    	31.  Sheriff Ross testified that part-time correction 
	employees are not regularly scheduled but are scheduled based on 
	the facility's need.
    	32.  Part-time employees have no expectation to a particular 
	shift for the week they are being scheduled.  
    	33.  After the full-time employees put in for various types of 
	leave, the part-time employees make their availability known to 
	the scheduling officer, who then plugs in the part-time employees 
	throughout the schedule to meet the needs of the jail.  The 
	tentative schedule is made on the Wednesday preceding the Sunday 
	on which the schedule starts, and is made final on that Friday. 
    	34.  Sheriff Ross testified that he could not operate the jail 
	within the standards under which he is obligated to operate it 
	without the flexibility of using part-time employees.
  
  				DISCUSSION

		Section 966(3) of the Municipal Public Employees Labor 
	Relations Law provides:

		3.  Unit clarification.  Where there is a certified or 
		currently recognized bargaining representative and where 
		the circumstances surrounding the formation of an 
		existing bargaining unit are alleged to have changed 
		sufficiently to warrant modification in the composition 
		of that bargaining unit, any public employer or any 
		recognized or certified bargaining agent may file a 
		petition for a unit clarification provided that the 
		parties are unable to agree on appropriate modifications 
		and there is no question concerning representation.

	Chapter 11, Section 6(3) of the Board Rules reiterates the 
	statutory requirements of 966(3), and further provides that a unit 
	clarification petition may be denied if the petition requests the 

	[end of page 8]

	clarification of unit placement questions which could have been 
	but were not raised prior to the conclusion of negotiations which 
	resulted in an agreement containing a bargaining unit description.
    	The parties do not dispute that three of the four 
	requirements are present here: AFSCME is the certified bargaining 
	agent for the corrections line bargaining unit, there is no 
	question regarding representation, and the parties have been 
	unable to reach agreement on the issue of whether part-time 
	employees should be included in the bargaining unit.  The parties 
	do not agree, however, on whether the circumstances surrounding 
	the formation of the bargaining unit have changed sufficiently to 
	warrant modification of the unit.
		"The requirement for changed circumstances is a 'threshold 
	question' in a unit clarification proceeding."  AFSCME Council 93 
	and Town of Sanford, 08-UC-02, at 12 (MLRB July 23, 2008), quoting 
	MSAD No. 14 and East Grand Teachers Association, No. 83-A-09, at 7 
	(MLRB Aug. 24, 1983).  It is the petitioner in a unit clarifica-
	tion proceeding who "bears the burden of alleging the requisite 
	change and, further, of establishing the occurrence of said change 
	in the unit then at issue."  State of Maine and MSEA, No. 82-A-02, 
	at 16 (MLRB June 2, 1983)(Interim Order).  Here, AFSCME alleges 
	that the use of part-time employees in terms of hours worked 
	has increased over time sufficient to have created changed 
	circumstances such that the unit should be modified to include 
	part-time employees.  The County argues that AFSCME could have 
	raised the issue in contract negotiations that have been ongoing, 
	and that evidence from the most recent round of negotiations 
	demonstrated that AFSCME only raised one limited issue regarding 
	bidding on open shifts by part-time corrections officers.  The 
	County further argues that the Union has had 30 years to negotiate 
	the inclusion part-time workers in the bargaining unit, but has 
	failed to do so.  Because of that failure, and because the 
	contract as written specifically states that it applies only to 

	[end of page 9]

	"all regular full time County employees" in the bargaining unit, 
	the County argues that AFSCME has not met its burden of 
	demonstrating changed circumstances.
		In AFSCME and Town of Sanford, MLRB 08-UC-02 (July 23, 2008), 
	petitioner AFSCME filed a unit clarification petition seeking a 
	determination of whether the General Assistance ("GA") Director 
	should be included in the Town of Sanford's general services 
	bargaining unit pursuant to 26 M.R.S.A. Sec. 966(3).  Although the 
	bargaining unit had existed in some form for over 20 years, there 
	was no evidence that the union had ever attempted to include the 
	GA director in the unit.  In support of its unit clarification 
	position, the union argued that the requisite changed circum-
	stances were met when a full-time GA director was hired.  In her 
	analysis, the hearing officer examined the job descriptions for 
	the GA Director that had evolved over the years and determined that: 

		[T]he essence or primary functioning of the position has 
		not changed since the formation of the bargaining unit.  
		The decision in 2008 to change the position back to a 
		full-time one and the hiring of a new employee to fill 
		the position are not the type of "changed circumstances" 
		which can support a petition to review the unit 
		placement of the position, mid-term, within the meaning 
		of Sec. 966(3).  

	Sanford at 18.  The hearing officer rejected the union's argument 
	that the position was now a "new" position, and as a result, 
	rejected the unit clarification petition filed by the Union.  
	Similarly, it is difficult to see how in the present case, changed 
	circumstances can be found when there is no evidence that the use 
	of part-time employees and the duties incumbent upon them have 
	changed over the 30-year history that the part-time workers have 
	been an essential part of the County's corrections work force, 
	notwithstanding fluctuation in the number of part-time employees 
	and the total number of part-time hours worked per year.  
		Although AFSCME draws a parallel between the scheduling here 

	[end of page 10]

	and that in Teamsters Union Local 340 and City of Westbrook, MLRB 
	13-UD-01 (Feb. 13, 2013), the two cases are distinguishable.  
	In Westbrook, the part-time, per diem employees adhered to regular s
	chedules based in large part on a templating system.  Similarly, 
	in Town of Berwick and Teamsters Local Union No. 48, MLRB No. 
	80-A-05 (July 24, 1980), although the "Part-time officers work[ed] 
	far fewer hours than [did] the Full-time officers, the Part-time 
	officers worked year-round on regularly scheduled shifts."  Town 
	of Berwick at 3.  
		In the present case, there was no evidence that the 
	employees' schedules are regular, and the employees are given very 
	short notice of days and shifts they are expected to work.  
	Although there was a great deal of evidence admitted regarding the 
	number of hours worked by the County's part-time employees between 
	2009 through the beginning of 2013, the evidence was also clear 
	that the part-time employees had no expectation of working a 
	particular shift or week.  Tentative schedules are made on the 
	Wednesday preceding the Sunday on which the schedule starts, and 
	the schedule is made final on that Friday, just two days before 
	the schedule is to begin.  Based on that evidence, these 
	employees' schedules are more akin to the matrons in Council 74, 
	American Federation of State, County and Municipal Employees, 
	AFL-CIO and County of Knox, MLRB 82-UD-17 (Jan. 18, 1982).  In 
	that case, the hearing officer determined that jail matrons were 
	excluded from the Knox County Deputies' Association Bargaining 
	Unit because they were on-call employees.  He based this 
	determination on his findings that the matrons were scheduled to 
	work either temporarily or from a rotation list "contingent upon 
	events, the arrest or incarceration of women, which are beyond the 
	control of the employer." County of Knox at 5.  Like the matrons 
	in County of Knox, the part-time employees in this case have 
	historically been scheduled dependent on the needs of the jail for 
	a given shift or week.  The facts do not now support placing the 

	[end of page 11]

	part-time employees into the bargaining unit because of changed 
	circumstances.

					ORDER

		On the basis of the foregoing facts and discussion, and 
	pursuant to 26 M.R.S.A. § 966(3), AFSCME's Petition for Unit 
	Clarification, seeking to add part-time employees to be included 
	in the Penobscot County Sheriff's Department Line Unit Corrections 
	Division, is denied.

	Dated at Augusta, Maine this, 20th day of August, 2013.

							MAINE LABOR RELATIONS BOARD



							/s/_____________________________
							Gwendolyn D. Thomas
							Hearing Examiner

				
		The parties are hereby advised of their right, pursuant to 26 
	M.R.S.A. Sec. 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 issuance of this report.
												


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