STATE OF MAINE
MAINE LABOR RELATIONS BOARD
Case No. 12-UD-02
Issued: August 31, 2012
TEAMSTERS UNION LOCAL 340
Petitioner,
and
NATIONAL CORRECTIONAL
EMPLOYEES UNION
Bargaining Agent,
and
YORK COUNTY,
Employer.
UNIT DETERMINATION REPORT
PROCEDURAL HISTORY
This unit determination proceeding was initiated on October
13, 2011, when George Abbott, an employee of the York County
Sheriff's Department, filed a Petition for Unit Determination
(Severance) and Decertification/Bargaining Agent Election with
the Maine Labor Relations Board ("Board," or "MLRB"). The
petition seeks a determination of whether the following ten
employees of York County, consisting of corporals, sergeants, and
lieutenants, should be severed from the existing York County
Sheriff's Department Corrections and Supervisory Employees Unit
bargaining unit pursuant to Sections 966 and 967 of the Municipal
Public Employee Labor Relations Law (MPELRL). The proposed
bargaining unit would be known as the "Supervisory Division,"
with the prospective bargaining agent for this unit identified as
the Teamsters Union Local #340. The NCEU filed a timely response
to the petition dated November 2, 2011.
A unit determination hearing notice was issued on January 9,
2012, and posted for the benefit of affected employees. A pre-
[end of page 1]
hearing conference was convened on January 17, 2012, to determine
the issues for hearing. The hearing on the UD petition was set
for February 15, 2012.
An evidentiary hearing on the unit determination was held by
the undersigned hearing examiner on February 15, 2012. The
hearing was held at the Board's hearing room in Augusta, Maine.
Sylvia Hebert appeared on behalf of the Teamsters; John D.
Connor, Esq., appeared on behalf of the NCEU; and Timothy J.
O'Brien, Esq., appeared on behalf of the Employer. At hearing,
the Teamsters presented seven witnesses: Michael Vitiello, Jail
Superintendent; Leo Rogers, Captain and Director of Programs;
George Abbott, Jr., Lieutenant, Director of Training; Carl Ronco,
Intake Sergeant; Jill Brooks, Sergeant; Jay Bondar, Corporal; and
Sandra Englesman, Corporal. NCEU presented one witness, Michael
Seaman, Sergeant, Operations Supervisor. The employer presented
no witnesses. The parties were given full opportunity to examine
and cross-examine witnesses and to offer evidence. At the close
of the hearing, the parties were given time lines for submitting
written briefs and reply briefs in support of their positions.
The briefs were due 30 days after the transcript was completed,
which was May 4, 2012, and reply briefs were due on June 4, 2012.
JURISDICTION
Jurisdiction of the hearing examiner over this matter,
including the ability to make a unit determination, is pursuant
to 26 M.R.S.A. Secs. 966(1) and (966(2).
EXHIBITS
The following exhibits were offered and admitted into the
record:
[end of page 2]
Joint 1: Job descriptions: Director of Training (Rank:
Lieutenant) and Correction Specialist (Rank:
Lieutenant).
Joint 2: Job descriptions: Intake Supervisor (Rank:
Sergeant) and Shift Supervisor (Rank: Sergeant).
Joint 3: Job description: Assistant Shift Supervisor (Rank:
Corporal).
Joint 4: Job description: Corrections Officer.
Joint 5: Reprimand dated November 9, 2011 and
Acknowledgment and Receipt dated 11/16/11; October
26, 2011 "Late for Shift" memo to Captain Rogers
from Sgt. McCormick; Corrective Memo from Sgt.
Carl Ronco regarding a 1/20/11 incident;
Acknowledgment and Receipt dated 1/21/11;
Corrective Memo dated 1/13/10 signed by Sgt.
McCormick; and Corrective Memo dated July 5, 2011
signed by Sgt. Jill Brooks.
Joint 6: Job Posting: Assistant Shift Supervisor- Corporal;
October 22, 2010 memo from Lt. Colonel Michael
Vitiello regarding Acting Supervisory Positions;
Job Posting: Corrections Division Corporal; Job
Posting-- Intake Supervisor. Interview procedure,
Corrections Officer, 3/15/11 and 3/16/11; Oral
Board scores for May 18, 2011.
Joint 7: York County Performance Appraisal, Corrections
Officer, 1/1/10-- 12/1/10; Employee Performance
Appraisal, Corrections Officer, dated 11/6/10 and
prepared by Sgt. Eric Daignault (4 pages);
Employee Performance Appraisal, Corrections
Officer, dated 11/6/10 and prepared by Cpl. Sandra
Engelsman (4 pages); Employee Performance
Evaluation, Corrections Officer, dated November
2010 and prepared by Sgt. Carl Ronco; and Employee
Performance Evaluation, Corrections Officer, dated
11/25/2010.
Union 1: York County Sheriff's Office Organizational Chart
Union 2: York County Commissioner's Court, Organizational
Chart.
Union 3: Collective Bargaining Agreement Between York
County and NCEU, January 1, 2008-- December 31,
2011: Corrections Unit.
Union 4: Agreement between the Cumberland County
Commissioners and Teamsters Local #340, July 1,
2010-- 2012: Correction Supervisors Unit.
Union 5: NCEU Business Agent Will Russell letters to
members, dated January 9, 2012, and November 28,
2011; NCEU President Local 109 letters to members
dated January 21, 2012, and August 29, 2011.
Union 6: Summary of Agreement between Cumberland County and
NCEU, July 1, 2010 to June 30, 2010.
[end of page 3]
NCEU 1: November 1, 2006, Agreement between Teamsters
Local 340 and York County.
NCEU 1a: Teamsters Local 340 Grievance dated 12/27/05.
FINDINGS OF FACT
1. The York County Sheriff's Department has a Chief Deputy who
oversees five employees/divisions: the Jail Superintendent,
the Patrol Commander, Support Services, Civil Process, and
Clerical Staff. Union Exhibit 1 is an organizational chart
showing the placement of personnel within the Sheriff's
Department. Captain Michael Vitiello elaborated on the
chart at the hearing.
2. The Patrol Commander, Support Services, Civil Process, and
Clerical Staff have no connection with jail operations and
are not located at the jail.
3. The jail is further divided into three divisions: Programs,
Operations, and Internal Affairs, which are each overseen by
captains.
4. The Operations Unit bargaining unit positions at the jail
are charged with the care, custody, and control of inmates
of the jail in some manner.
5. A corrections officer (CO) must have a high school diploma
or its equivalent; must complete the Maine Criminal Justice
Academy (MCJA) Basic Corrections Course within the first
year of employment; must be certified in CPR or have the
ability to obtain certification; and must have the ability
to physically control violent, unruly members of the inmate
population.
6. Like a CO, a corporal must have a high school diploma or its
equivalent and must complete the MCJA Basic Corrections
Course or obtain a waiver. In addition, a corporal must
have at least two years of uninterrupted service in
Corrections; must have complete and thorough knowledge of
the Maine State Jail Standards, Department Policy and
[end of page 4]
Procedures, Department Standard Operating Procedures (SOPs),
and Union Agreements; and must possess supervisory and
leadership abilities.
7. The qualifications for sergeants are the same as for
corporals, except that they must have three rather than two
years of uninterrupted service in Corrections; and the
intake supervisor sergeant must complete MCJA training in
First Line Supervision.
8. The qualifications for a corrections specialist lieutenant
are the same for sergeants, except that the 100 Hour Law
Enforcement Pre-Service Training is substituted for the MCJA
training in First Line Supervision, and the work experience
can include three years of a combination of work as a
corrections officer, programmer, or classification officer.
In addition, a corrections specialist lieutenant must be
committed to providing alternatives to restrictive
correctional custody subject to limitations, and must be
able to effectively deal with people and possess excellent
communication skills.
9. The Director of Training lieutenant must meet the same
requirements as a corporal, with the additional requirements
that the candidate has completed or is able to successfully
complete the Methods of Instruction class at MCJA, and has
the ability to maintain and safeguard confidential and
classified information. The Director of Training lieutenant
has no direct contact with inmates.
10. Promotions are based on, but not limited to, scores from an
oral board, a written exam, a review of years of
service/seniority, and a sheriff's interview.
11. CO's have the most direct, day-to-day responsibility to
attend to the care, custody, and control of inmates. The
supervisory personnel at issue in this petition
lieutenants, sergeants, and corporals- all perform some of
[end of page 5]
the same direct duties as the CO's, but have additional
supervisory responsibilities.
12. CO's, with additional training,[fn]1 may act as the
"officer in charge" when a sergeant is not available on a
given shift.
13. Lieutenants, sergeants, and corporals who supervise other
employees all have the ability to administer discipline to
those who hold positions below them, up to a written
reprimand. The steps of discipline include verbal
counseling, written counseling, corrective memos, written
reprimands, suspension, and discharge.
14. Lieutenants, sergeants, and corporals discuss or review the
discipline they have meted out with the Captain of
Operations, or his designee, to keep him apprised of the
situation with the jail personnel.
15. Only the Captain of Operations is able to administer all
levels of discipline, except discharge, which is the sole
responsibility of the Board of York County Commissioners.
16. Sergeants and corporals complete performance evaluations on
CO's.
17. The Captain of Operations retains the authority to return
evaluations and ask that they be changed if he believes they
are inaccurate or that they have not included everything
relevant regarding particular employees.
18. Lieutenants, sergeants, and corporals do not establish or
change jail policies and procedures; that responsibility
belongs to the Sheriff. The jail superintendent provides
input to the Sheriff on the jail policies and procedures.
19. Lieutenants, sergeants, and corporals are not responsible
for scheduling; the Captain of Operations is responsible for
that function. Sergeants, corporals, and the officer in
charge are responsible for assisting in filling in open
1 No one testified as to what additional training was
required for a CO to act as the officer in charge (OIC).
[end of page 6]
shifts when necessary (for example, due to someone calling
out sick).
20. Sergeants and corporals have the pre-shift responsibility of
reporting for a briefing 30 minutes early; CO's share the
same responsibility, but must report 12 minutes early to
receive the briefing, or "roll call," from their supervising
sergeant or corporal. All personnel are paid for this
additional work time.
21. Sergeants, corporals, and CO's may be offered 16-hour shifts
or required to work mandatory overtime when necessary to
fill in when a colleague calls out sick, or as needed, so
the jail has sufficient personnel to run the shift.
22. Working a 16-hour shift may place a larger burden on
supervisors because there is a smaller pool of people from
which to choose.
23. All personnel are paid an hourly rate on a step basis,
depending on years of service/experience. CO's are paid at
step A, corporals are paid at step B, sergeants are paid at
step C, and lieutenants are paid at step D. CO's, when
acting as an officer in charge, are paid the same as
corporals, at step B.
24. Except for the possibility of participating on an oral
board, sergeants and corporals are not involved in the
hiring process; that is the responsibility of the Captain of
Operations and to a much more limited extent, the Director
of Training Lieutenant.
25. The Captain of Operations, not lieutenants, sergeants, or
corporals, adjusts grievances filed by subordinates and
interprets and enforces the collective bargaining agreement
(CBA).
26. The bargaining unit has been in existence since 1981, and
has, at different times, included such other diverse
positions as dispatchers, court officers, cooks, transport
[end of page 7]
officers, and police services sergeants.
27. There is no history of conflict among the lieutenant,
sergeant, corporal, and CO bargaining unit members caused by
supervisors and those they supervise being in the same unit.
However, some supervisors have recently raised the concern
that they would feel uncomfortable filing a grievance
against a CO and having another CO as the union steward to
represent them. For these reasons, supervisors would prefer
to represent themselves in grievances.
28. The Teamsters represented the bargaining unit from the time
of its inception in 1981 until it was decertified on
September 1, 2010. The National Correctional Employees
Union (NCEU) has represented the bargaining unit since that
time.
STIPULATIONS
The following stipulations were made by the parties:
1. The Lieutenants, Sergeants, Corporals, and Corrections
Officers have frequency of contact or interchange among
themselves.
2. The Lieutenants, Sergeants, Corporals, and Corrections
Officers have geographic proximity.
3. The Lieutenants, Sergeants, Corporals, and Corrections
Officers have a history of collective bargaining.
4. The extent of union organization is:
-The Corrections Captains are represented by the
Teamsters Local 340.
-The Corrections Unit is represented by the NCEU.
-The Patrol Unit is represented by the Patrol
Association.
-The Clerical workers are represented by the MSEA.
[end of page 8]
DISCUSSION
The issue presented by this case is whether a group of
lieutenants, sergeants, and corporals, which is now a part of the
York County jail bargaining unit with the corrections officers,
should be allowed to sever from that unit and become a separate
bargaining unit. The petitioner argues that the severance[fn]2
petition should be granted because the lieutenants, sergeants,
and corporals share a community of interest distinct from that of
the existing, larger bargaining unit. NCEU argues that the
severance petition should be denied because: 1) it would be
counter to the Board's long-standing policy against the
proliferation of small bargaining units through fragmentation;
and 2) the existing bargaining unit has already been determined
to share a community of interest, severance would be contrary to
the desires of the affected employees, and there has been a long
history of collective bargaining. The employer took no position
on this argument at hearing.
The Board has held that a unit determination petition
accompanied by a proper showing of interest is the proper
mechanism for attempting to sever a bargaining unit from an
existing unit. Teamsters Local No. 48 and State of Maine
(Institutional Services Unit), et al., No. 84-A-02 (MLRB Apr. 2,
1984); City of Bangor and Local 1599, IAFF, No. 80-A-03, at 3-4
(MLRB July 18, 1980). Pursuant to 26 M.R.S.A. Sec. 966(2), this
matter turns upon an evaluation of the presence or absence of a
"clear and identifiable community of interest" as a unit
determination. In determining whether employees share the
necessary community of interest in matters subject to collective
bargaining, the following factors, at a minimum, must be
2 The petitioner has filed a petition for a unit
determination, the proper mechanism for seeking the severance of
a bargaining unit. Although the Board Rules do not provide for a
"petition for severance" per se, the petition will be referred to
as one for severance in this decision.
[end of page 9]
examined: (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 of
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.
Board Rules, Chapter 11, Section 22(3).
Title 26 M.R.S.A. Sec. 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). A petition for severance is more complex than a unit
determination petition because it requires the hearing officer to
analyze both whether a community of interest exists among the
employee classifications in the proposed bargaining unit to be
severed, and whether a community of interest exists among the
proposed bargaining unit and the larger, existing unit.
In its seminal severance case, Mallinckrodt Chemical Works
and IBEW, Local No. 1, 162 NLRB 387, the National Labor Relations
Board noted that a severance determination requires balancing
competing interests:
[end off page 10]
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. Additionally, one of the community of
interest factors, a history of collective bargaining, is given
heightened scrutiny in a severance petition. Past Board
decisions have determined that the history of collective
bargaining is very important, and sometimes the decisive factor
in severance petitions. See Teamsters Local No. 48 and Town of
Winslow, No. 84-UD-17, slip op. at 11 (MLRB May 31, 1984)
(petition to sever firefighters from public works unit denied
where bargaining history "long" and "fruitful"); Council No. 74,
AFSCME and Cumberland County, No. 84-UD-11 (MLRB March 16, 1984)
aff'd. No. 84-A-04 (MLRB Apr. 25, 1984) (petition to sever patrol
positions from corrections granted; two-year bargaining history
cited). The NLRB has also found that the history of collective
bargaining is a key element in determining severance petitions.
Kaiser Foundation Hospitals and Independent Brotherhood of
Skilled Hospital Maintenance Workers, 312 NLRB 93, 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).
To succeed in severing positions out of an existing unit,
the petitioner bears a high burden. Cumberland County Sheriff's
Office and AFSCME Council 93, MLRB No. 02-UD-03 (May 31, 2002).
Although the number of severance petitions resolved by hearing
have not been numerous, there has only been one severance
[end of page 11]
petition in the Board's history that has been granted. Council
No. 74 AFSCME and Cumberland County, supra (petition to sever
patrol positions from corrections granted when there was only a
two-year bargaining history). Similarly, the NLRB has found that
the party seeking severance bears a "heavy burden." Kaiser
Foundation Hospitals, 312 NLRB at 935, n. 15. A more recent NLRB
case affirmed by that Board concluded, after reviewing the
history of severance cases, that severance has been granted
"sparingly" by the NLRB. Metropolitan Opera Ass'n and Operatic
Artists of America, 327 NLRB 740, 752 (1999). And after
reviewing precedent from other states on this issue, one hearing
officer concluded that the "... overwhelming view that severance
petitions, while procedurally permissible, must nevertheless
overcome formidable standards for success." Teamsters Local No.
48 and City of Portland, No. 81-UD-10, slip op. at 15 (MLRB July
10, 1981).
The facts support the finding that the supervisory positions
all perform similar kinds of work, including the care, custody,
and control of inmates, and the supervision of subordinate
positions. All of these supervisors have similar qualifications,
skills, and training, including a high school diploma and
completion of some type of course at the Maine Criminal Justice
Academy, with required additional experience and service for each
rise of a step in the chain of command. Each is supervised by
positions higher in the chain of command: corporals by sergeants,
sergeants by lieutenants or captains, and lieutenants by
captains. All of the positions are covered by a collective
bargaining agreement. The labor relations policy is commonly
determined for the positions, the positions are all paid on a
step rate, and the positions have the same or similar benefits,
hours of work, and other terms and conditions of work. Most of
the positions are able to have contact or interchange, although
[end of page 12]
not each person in every position is able to interact with each
person in other positions. All of the supervisor positions work
at the jail or spend time at the jail with subordinates or the
inmates. The extent of union organization and the employer's
organizational structure both support a finding that the
supervisors share a community of interest. The history of
collective bargaining- a nearly 30-year, uninterrupted, history-
does not support a finding that the supervisors should be severed
from the existing bargaining unit.
The remaining question is whether the supervisors share a
community of interest with the CO positions that are currently in
the same bargaining unit. In order to make that determination,
it is necessary to examine the community of interest factors as
it relates to all of the positions. At this juncture, it would
be appropriate to address the stipulations of fact reached by the
parties.
The Teamsters and the NCEU were able to reach four
stipulations of fact. The stipulations address the community of
interest among the classifications in the existing bargaining
unit of lieutenants, sergeants, corporals, and corrections
officers. These stipulations establish that the current
bargaining unit members have frequency of contact or interchange
and that all of them have geographic proximity. In addition, the
parties stipulated that the bargaining unit members have a
history of collective bargaining. Moreover, the extent of union
organization and the employer's organizational structure support
a finding that the bargaining unit members share a community of
interest.
(1) Similarity in the kind of work performed. The CO's hold
front line positions and have no supervisory responsibilities
[end of page 13]
except for those who have had the training to become officers in
charge. The lieutenants, sergeants, and corporals, who would
comprise the proposed supervisory bargaining unit, supervise
those below them in the chain of command. Unlike the National
Labor Relations Act, the MPELRL grants supervisors collective
bargaining rights and permits bargaining units to include
supervisors with subordinate employees. In Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care
Professionals, No. 85-A-01, slip op. 8 (MLRB Feb. 6, 1985), the
Board stated:
Section 966(1) does not require the exclusion of
supervisory employees from bargaining units composed of
the employees whom they supervise but relegates the
decision of the supervisory employees' unit status to
the sound discretion of the hearing examiner. Except
in instances where the resulting one- or two-member
supervisory unit would contravene our policy of
discouraging the proliferation, through fragmentation,
of small bargaining units, we have approved the
creation of such separate supervisory units....
(Citation omitted.) Even so, the Board has found that 26
M.R.S.A. Sec. 966(1) expresses a preference that supervisory
employees and the employees they supervise not be included in the
same bargaining unit. Town of Kittery and Teamsters Local No.
48, No. 83-A-02, slip op. at 4 (MLRB Feb. 7, 1983). In Kittery,
the Board recognized that including both groups of employees in
the same unit could result in a conflict of loyalties on the part
of the supervisors between that owed to the employer and that
felt for fellow unit members. The Board found that such conflict
could interfere with effective supervision.
Section 966(1) of Title 26 provides the hearing officer
ample assistance in identifying situations where conflicting
interests and loyalties may arise. Section 966(1) states, in
relevant part:
[end of page 14]
In determining whether a supervisory position should be
excluded from the proposed bargaining unit, the
executive director or his designee shall consider,
among other criteria, if the principal functions of the
position are characterized by performing such
management control duties as scheduling, assigning or
overseeing and reviewing the work of subordinate
employees, or performing such duties as are distinct
and dissimilar from those performed by the employees
supervised, or exercising judgment in adjusting
grievances, applying other established personnel
policies and procedures and in enforcing a collective
bargaining agreement or establishing or participating
in the establishment of performance standards for
subordinate employees and taking corrective measures to
implement those standards.
Under the first prong of the test set forth in Sec. 966(1),
the hearing examiner must assess whether the principal functions
of the supervisory positions involve scheduling, assigning,
overseeing, or reviewing the work of subordinates. Here, the
Captain of Operations is responsible for the regular scheduling
of all positions.[fn]3 Sergeants, corporals, and CO's (acting
as officers in charge) all have authority to be in charge of the
overall operations of their shifts. Sergeants and corporals have
the responsibility to write performance evaluations for the
subordinates they supervise, although these evaluations are
reviewed by the Captain of Operations to make sure they are
complete and accurate. Lieutenants, sergeants, and corporals are
charged with administering discipline up to a written reprimand.
In applying the first prong of the test to the above
supervisory positions, it appears that these positions share a
similar level of supervisory authority. Likewise, the CO's, with
some additional training, can share in that supervisory
authority. The CO's, lieutenants, sergeants, and corporals are
charged with the care, custody, and control of inmates, which is
3 The only exception to this is if someone called out sick,
when a lieutenant, sergeant, corporal, or officer in charge on
the shift has to fill the slot according to protocol.
[end of page 15]
their ultimate responsibility. The chief responsibility of the
sergeants and corporals is the care, custody, and control of the
inmates rather than scheduling, or assigning and reviewing the
work of subordinates. Like the sergeants and corporals in
Corporals and Sergeant(s), Cumberland County Sheriff's Office and
AFSCME Council 93 and Cumberland County Commissioners, No. 02-UD-03
at 30 (MLRB May 31, 2002)the sergeants and corporals here
"function, in many ways, like 'line foremen' or 'working
foremen,'" which the Board has long found may be a part of the
same bargaining unit as their subordinates. See, e.g., Teamsters
Local No. 48 and Van Buren Light and Power District, No. 85-UD-14
(MLRB Jan. 25, 1985) (duties of line foreman who assigns,
oversees and reviews work of employees determine as a whole not
to be so distinct and dissimilar from those performed by
supervised employees to warrant exclusion from proposed unit);
Teamsters Local No. 48 and Town of Pittsfield, No. 81-UD-09 (MLRB
Jan. 15, 1981) (sergeant position found to be "working
supervisor" where supervisory duties were limited and undemanding
and where majority of time was devoted to regular patrol work).
The second prong of the test set forth in Sec. 966(1)
requires the evaluation of whether a supervisor performs duties
that are "distinct or dissimilar" from the duties of the
employees who are supervised. This requirement was not meant to
include every dissimilar duty:
[D]uties contemplated by the 'distinct and dissimilar"
criterion include those in connection with hiring (or
making recommendations), transfers, layoffs and
recalls, and promotions- duties that substantially
align the interest of the supervisor with the interests
of the employer and cause conflicts of interest.
Corporals and Sergeant(s), Cumberland County Sheriff's Office at
30, quoting State of Maine And MSEA, No. 91-UC-04, Slip op at 15
(MLRB Apr. 17, 1991). The only one of the three supervisory
positions that has any authority in the area of hiring is the
[end of page 16]
director of training lieutenant. That position is "involved in
interviewing and scheduling different phases of the hiring
process, including scheduling the sheriff's interview, completing
background checks, and making sure that fingerprints are taken
for new applicants." (Transcript, p.15). However, all the
significant authority in the areas of hiring, promoting, and
transferring is held by positions higher than the lieutenants,
sergeants, and corporals. In addition, the authority to suspend,
discharge, or lay-off subordinate employees is also reserved to
positions above the lieutenants, sergeants, and corporals.
Because the lieutenants, sergeants, and corporals do not perform
duties that are distinct and dissimilar from the CO's here, they
do not meet the second prong of the test set forth in 966(1).
The third and final prong of the test requires the hearing
officer to assess whether the supervisory personnel at issue
adjust grievances, apply personnel policies and procedures,
enforce the CBA, establish performance standards, and have
authority over discipline for violations of performance
standards. Here, while a lieutenant, sergeant, or corporal may
discipline those below them in the chain of command up to a
written reprimand, all other authority belongs to either the
sheriff, captain of operations, or the jail superintendent,
whether it be for establishing personnel policies and procedures,
enforcing the CBA, adjusting grievances, establishing performance
standards, or applying the more serious forms of discipline. In
sum, then, an evaluation of Sec. 966(1) does not support the
conclusion that the positions in the proposed supervisory unit
are so distinct and dissimilar that a separation is necessary.
Testimony from hearing about actual and potential conflicts
also does little to mandate that a separation occur. Some
supervisors raised the concern at hearing that they would feel
uncomfortable filing a grievance against a CO and having another
CO as the union steward representing them. However, there was
[end of page 17]
testimony that there was a sergeant available as a steward if a
supervisor was not comfortable utilizing a CO for that purpose.
(2) Common supervision and determination of labor relations
policy. All of the positions in the bargaining unit are
supervised by positions within the chain of command, including
the supervisory positions the petitioner seeks to sever. All of
the bargaining unit positions, except for the lieutenants, report
to the Captain of Operations. The lieutenants either report to
the Programs Captain or the Internal Affairs Captain. All of the
Captains report to the Jail Superintendent, who reports to the
Chief Deputy. The Chief Deputy ultimately reports to the
Sheriff. The labor relations policy is uniform for the
positions, based upon the collective bargaining agreement. This
supports a finding of a community of interest among the positions
in the bargaining unit.
(3) Similarity in the scale and manner of determining earnings.
The positions within the bargaining unit are all paid on an
hourly rate on a step system:[fn]4 the CO's are paid on Step A
on a range from $15.68 to 18.53; corporals are paid on Step B at
a range at a range from $17.10 to 20.19; sergeants are paid on
Step C at a range from $18.61 to 22.00; and lieutenants are paid
on Step D at a range from $20.35 to 24.02. All of the positions
are paid overtime pursuant to the collective bargaining
agreement, which also provides for longevity pay.
Even though the pay rates among the positions differ, the
scale and manner of determining earnings is similar, which has
been the case for this unit throughout its bargaining history.
The evidence supporting this factor supports a finding of
community of interest among the positions in the bargaining unit.
4 This information is from the CBA provided at hearing.
Some individual variations in pay may occur.
[end of page 18]
4) Similarity in employment benefits, hours of work and other
terms and conditions of employment. The employment benefits for
positions in the bargaining unit are the same as defined by the
collective bargaining agreement, although testimony at hearing
indicated that vacation time is bid on in a different manner for
CO's than for supervisors. Hours of work are almost identical,
with supervisors having to report 30 minutes prior to a shift for
a briefing and CO's having to report 12 minutes prior to their
shifts for a briefing by their supervisors. All positions are
paid for this pre-shift time, or for any time they may have to
stay after their shifts. In addition, CO's, corporals, and
sergeants are all subject to mandatory overtime.[fn]5 These
facts support a finding on this factor of a community of interest
among the positions in the bargaining unit.
(5) Similarity in the qualifications, skills and training of
employees. The similarities to be compared in this factor are
laid out in Findings of Fact 5-- 9. The supervisory positions
at issue share many of the qualifications as the CO's. All of
the positions require a high school diploma and completion of
the MCJA basic corrections course, although the CO's must
complete the course in the first year of employment. The
supervisors are required to have additional work experience
depending on the particular position they hold, and they may be
required to have additional training. However, Sergeant
Seaman, the only one to testify about what the additional
training entailed, testified that additional training to become
a sergeant was "pretty menial...common-sense type training..."
that lasted "two or three days[,]...[and that] the one they do
now might be a week long but I'm not sure." Transcript 174.
5 There was testimony that overtime may be more of a
burden for supervisors than for CO's because of the relatively
fewer supervisor positions, so that supervisors had to work
more often.
[end of page 19]
The nature of work and qualifications, skills, and
training required do not have to be identical in order for
various positions to be placed in the same bargaining unit:
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.
Auburn Education Ass'n/MTA/NEA and Auburn School Committee, No.
91-UD-03, slip op. at 11, (MLRB Feb 27, 1991). This unit has
been in existence for nearly three decades despite its
diversity of positions. The question here is whether the
supervisory positions require the unique qualifications,
skills, and training to make them a separate and distinct group
that no longer shares a community of interest with the
bargaining unit. As set forth above, such is not the case
here.
The Teamsters argue in their brief that the members of the
proposed supervisors' unit should be considered to be
professional employees within the meaning of 26 M.R.S.A. Sec.
962(5), which states:
5. Professional employee. "Professional employee" means
any employee engaged in work:
A. Predominately intellectual and varied in
character as opposed to routine mental, manual,
mechanical or physical work;
B. Involving the consistent exercise of discretion
and judgment in its performance;
C. Of such a character that the output produced or
the result accomplished cannot be standardized in
relation to a given time period; and
D. Requiring knowledge of an advanced type in a
field of science or learning customarily acquired by
a prolonged course of specialized intellectual
instruction and study in an institution of higher
[end of page 20]
learning or a hospital, as distinguished from a
general academic education or from an apprenticeship
or from training in the performance or routine
mental, manual or physical processes.
While the work the supervisors perform meet the description of
section B, and arguably sometimes section C, the work is not
predominately intellectual and varied in nature as required by
section A and does not require a prolonged course of study in
an institutional of higher learning or hospital, the
requirements of section D. See Findings at 5 through 13. The
supervisory positions, therefore, do not meet the definition of
"professional employee" as set forth in the MPELRL.
(6) Frequency of contact or interchange among the employees.
The sergeants, corporals, and CO's have contact on a daily
basis in carrying out their most basic function- care, custody,
and control of the inmates-- at the jail. Although they are
charged with the same overall responsibility, the lieutenants
have less day-to-day contact with the others in carrying out
that mission. It appears that this criteria, too, supports the
finding of a community of interest between the supervisors and
the CO's in the bargaining unit.
(7) Geographic proximity. This factor is addressed in #6,
above.
(8) History of collective bargaining. As stated earlier in this
decision, this factor is very important in considering a
petition for severance and has sometimes been found to be the
decisive element. Hearing examiners have evaluated various
aspects of collective bargaining in evaluating this factor.
See Teamsters Local No. 48 and County of Cumberland, No. 84-UD-11
(MLRB Mar. 16, 1984) (length and stability of bargaining
relationship; participation in union affairs by bargaining unit
members seeking severance; the offering of special proposals
for the group at bargaining table; whether unit created by
[end of page 21]
agreement); Teamsters Local 48 and City of Portland, No. 81-UD-10
(MLRB July 10, 1981) (adequacy of union representation in
grievances; length and stability of bargaining relationship;
the offering of special proposals for the group at bargaining
table); Teamsters Local No. 48 and State of Maine (Institutional
Services Unit), No. 83-UD-25 (MLRB Jan. 10, 1984, aff'd, No.
84-A-02 (Apr. 2, 1984) (same).
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 and special
provisions affecting the interests of the proposed
unit have been included in bargaining agreements.
Bendix Corp., 227 NLRB at 1537; Beaunit Corp., 224
NLRB at 1504.
Teamsters Local No. 48 and State of Maine (Institutional
Services Unit)83-UD-25 at 14.
This unit has had a nearly 30-year history of bargaining.
The most recent agreement was ratified by a large majority.
Until last year, there was no apparent effort by the
supervisors to establish an identity separate from the CO's.
See Mallinckrodt 162 NLRB at 397. At the present time, one
supervisor is a union steward for the union, while the other
five who testified that they are not happy with the union
appear to have done little to bring their issues to the union,
by way of participation or grievance. None who complained had
any claim that the CO's received preferential treatment over
the supervisors in the most recent CBA. In short, none of the
factors stressed as being critical in Teamsters Local No. 48
and State of Maine (Institutional Services Unit) are present
here. Based on the long history of the bargaining process in
this case, and in spite of a recent dissatisfaction and lack of
participation by the majority of supervisors who testified, a
[end of page 22]
community of interest exists between the supervisors and the
CO's. It would be inappropriate and detrimental to sever what
has been a long and stable relationship.
(9) Desires of the affected employees. The only measure of the
desires of affected employees regarding severance was the
testimony elicited at hearing, where five supervisors testified
in favor of severance and one testified against it. There was
some testimony about 16-hour shifts having more of an effect on
supervisors than CO's. Otherwise, the supervisors gave little
in the way of reasons for their positions besides whether they
did or did not prefer the union itself.
(10) Extent of union organization.
The union organization is as follows:
-The Corrections Captains are represented by
The Teamsters Local 340.
-The Corrections Unit is represented by the NCEU
-The Patrol Unit is represented by the Patrol
Association.
-The Clerical workers are represented by MSEA.
(11) The employer's organizational structure. The employer's
organizational chart shows that lieutenants are supervised by
captains, as are some sergeants; other sergeants are supervised
by lieutenants; corporals are supervised by sergeants; CO's are
supervised by corporals; and CO's acting as officer in charge
supervise other CO's. All are supervised by the positions
above them, up to and including the jail superintendent, chief
deputy, and, ultimately, the sheriff. Although the supervisory
chain of command seems certain from looking at the
organizational chart, the actual work performed by the
individuals in the positions from CO's through lieutenants
should be reviewed. (See discussion in section 1.)
After applying the facts of this case and the guidance set
[end of page 23]
forth in 26 M.R.S.A. Sec. 966(1) to the community of interest
factors, with a particular focus on the history of collective
bargaining, there is no support for a finding that the
corporals, sergeants, and lieutenants in the bargaining unit no
longer share a community of interest with the CO's in the unit.
CONCLUSION
The petition for unit determination filed on October 13,
2011, by George Abbott on behalf of the lieutenants, sergeants,
and corporals of the York County Sheriff's Department seeking
the severance of those positions from the York County Sheriff's
Corrections and Supervisory Unit is denied. As a result, these
positions will remain in the presently-configured bargaining
unit. The portion of the decertification/bargaining agent
election for this unit of lieutenants, sergeants, and corporals
will not be acted upon further by the Board.
Dated at Augusta, Maine, this 31st day of August, 2012.
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 decision 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 Chapters 10 and 11(30) of the Board Rules.
[end of page 24]