Aff'd, Case No. 13-UDA-01.
STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 12-UD-05
Issued: June 19, 2012

FREEPORT POLICE
BENEVOLENT ASSOCIATION,
Petitioner,

and

TOWN OF FREEPORT
Respondent,

 

UNIT DETERMINATION REPORT

 

	  PROCEDURAL HISTORY

	This unit determination proceeding was initiated on April 12, 2012, when Gino
Bianchini, President of the Freeport Police Benevolent Association (hereinafter referred
to as the "FPBA"), filed a petition for unit determination with the Maine Labor Relations
Board ("Board").  The petition sought a determination whether the Sergeants at the
Freeport Police Department should be added to an existing bargaining unit consisting of 
all full-time Patrol Officers employed by the Freeport Police Department for which FPBA
is the bargaining agent.  The Town of Freeport ("Town" or "employer") filed a timely
response to the petition, arguing that since the Sergeants are supervisors, within the
meaning of 26 M.R.S.A.   966(1), they should not be included in the same unit as the
employees they supervise; but, rather, together constitute an appropriate police 
supervisors' bargaining unit. 

	A unit determination hearing notice was issued on May 21, 2012, and was
posted for the benefit of affected employees. The hearing was conducted on May 31,
2012.  The FPBA was represented by Jonathan Goodman, Esq.  The Town was 
represented by Matthew Tarasevich, Esq.  The parties were afforded full opportunity to
examine and cross-examine witnesses, to present evidence and to make argument.
Sergeant John Perrino testified on behalf of the FPBA and Police Chief Gerald

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Schofield testified on behalf of the town.  The only issue raised by this case is whether
the position of Sergeant should be included in the Patrol Officers bargaining unit or 
should the Sergeants constitute a separate police supervisors bargaining unit.  The
parties presented oral argument at the conclusion of the hearing.

                                       JURISDICTION

	The jurisdiction of the executive director to hear this matter and to make an
appropriate unit determination lies in 26 M.R.S.A.   966.

                                         EXHIBITS

	The following exhibits were admitted into the record without objection:

Joint No. 1   Freeport Police Department organizational chart

Joint No. 2   July 1, 2010 - June 30, 2012 collective bargaining agreement between
              The Town of Freeport and The Freeport Police Benevolent Association

Joint No. 3   Job description, Sergeant

Joint No. 4   Job description, Patrolman

Joint No. 5   Freeport P.D. Standard Operating Procedure No. 1-10, Complaint Against
              Law Enforcement Agency Personnel

Joint No. 6   Freeport P.D. Standard Operating Procedure No. 1-11, Employee
              Discipline

                                    FINDINGS OF FACT

	1. The Freeport Police Benevolent Association ("FPBA") is the petitioner and is
the bargainging agent for the Freeport Patrol Officers bargaining unit, within the meaning
of 26 M.R.S.A.   962(2).

	2. The Town of Freeport is a public employer, within the meaning of 26 M.R.S.A.
  962(7).

	3. The current collective bargaining agreement for the Freeport Patrol Officers
bargaining unit expires on June 30, 2012; therefore, the instant petition was timely filed

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within the statutory window period.

	4. The head of the Freeport Police Department is the Police Chief.  The
remainder of the department consists of 13 employees: one Lieutenant, two Sergeants,
eight Patrol Officers, one Detective (Patrol Officer), and one Secretary.

	5. The chain of command at the Freeport Police Department is as follows: the
Patrol Officers and the Detective report to the Sergeants; the Sergeants report to the
Lieutenant; and the Lieutenant and the Secretary report to the Police Chief.

	6. The department operates 24 hours per day, on a three-shift per day system.
The Police Chief and the Lieutenant work during the day, Monday through Friday,
although the Police Chief might stop by the department at any time.  The 5:00 P.M. to
3:00 A.M. shift consists of one Sergeant and one Patrol Officer.  There is no Sergeant 
on-duty from 3:00 A.M. to 7:00 A.M.; however, a Sergeant is on-call during that time.
Weekend days there is no supervisor or administrative officer on-duty.  The Patrol
Officers work shifts, on a regularly-scheduled, rotating basis.

	7. Three or four of the eight Patrol Officers are "younger officers," who require
more supervision than do more seasoned veterans.

	8. On an on-going basis, the Sergeants provide verbal performance
improvement feed-back to the Patrol Officer with whom they serve on a given shift.

	9. Sgt. Perrino testified that he has given "quite a few" direct orders to the Patrol
Officers whom he supervises, although such orders are usually informal in nature.

	10. About 15% of the Sergeants' work time is spent on performing supervisory
duties.  The remaining 85% of the time, the Sergeants perform the same work as do the
Patrol Officers, patrolling the town in a cruiser and responding to calls.

	11. Pursuant to the police department's standard operating procedure ("SOP")
employee discipline procedure, the Sergeants are empowered to give oral or written 
discipline to the Patrol Officers.

	12. The discipline SOP further authorizes Sergeants to relieve Patrol Officers
from duty, where the former "ha[ve] a reasonable basis to question an employee's
physical or psychological fitness for duty," for serious violations of departmental policy,
or for refusal to obey a lawful direct order.  Relief from duty decisions are subject to
review by the Police Chief.

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	13. Pursuant to the police department's standard operating procedure for
complaints against law enforcement agency personnel, the Police Chief may assign the
Sergeants to handle relatively minor complaints informally.  All other such complaints
are handled by the Leiutenant.

	14. When the Police Chief determines that an internal investigation is required,
the Chief will assign an officer to conduct the investigation.  Usually, the Lieutenant is
the officer assigned; however, Sgt. Perrino has conducted 3 such investigations.

	15. The Sergeants write the yearly performance evaluations for the Patrol
Officers.

	16. The wages article of the Patrol Officers' collective bargaining agreement
provides a seven-step wage scale and states that "[a]dvancement on steps shall occur 
on anniversary dates based on an average or better evaluation."

	17. The police department work schedule is determined by the Lieutenant,
without input from the Sergeants.  The Sergeants can approve shift swaps and, if an
officer calls in sick, the Sergeant will find a replacement officer to fill the shift.

	18. The grievance article of the Patrol Officers' collective bargaining agreement
provides that the Police Chief is the decisions-maker on behalf of the employer at the
first step of the grievance process.  If the grievance is not resolved at step 1, it moves to
the Town Manager and, if it remains unresolved, it then proceeds to arbitration, which is
final and binding on the parties.

	19. The Police Chief and the Lieutenant formulate the department's standard
operating procedures.  While the Sergeants have no formal role in that process, they
may make suggestions for consideration by the decision-makers.

	20. In addition to their supervisory and patrol responsibilities, the Sergeants
perform assigned departmental responsibilities that include firearms and self-defense
training, preparing the monthly State inmate population report, serving as the crash
administrator (accident report review), and reviewing offense and incident reports.
Patrol Officers also perform some of these functions; e.g., a Patrol Officer serves as the
backup crash administrator and another is a firearms training officer.

	21. Sergeants and Patrol Officers have served on interview panels to screen
candidates for employment with the police department.  The interviewers make

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recommendations to the Police Chief, who is the sole decision-maker in the hiring
process.

	22. The Patrol Officers, the Detective, and the Sergeants are compensated on
an hourly basis and are all on a pay scale, with the Sergeants' scale being higher that
for the other two classifications.  All these employees have a 40-hour standard work 
week.

	23. The Patrol Officers and the Sergeants have similar employment benefits; in
particular they have the same health insurance coverage.

	24. The minimum educational qualification for both Patrol Officers and
Sergeants is graduation from high school or the equivalent; however, Sergeants are
expected to have at least 5-years' experience as a police officer; but, a two-year degree
in law enforcement or training in "modern police supervision" may be substituted in
meeting the experience requirement.

	25. The Sergeants each work with a Patrol Officer staffing a ten-hour shift and
the Patrol Officers cycle through the shifts on a rotating basis.

	26. All of the police department employees work out of a single station.

	27. The Patrol Officers' bargaining unit formerly included dispatchers; however,
that is no longer the case.

	28. Sergeant Perrino expressed a desire to be included in the Patrol Officers' 
bargaining unit and the bargaining agent for that unit is the petitioner in this matter.

                                     DISCUSSION

	The sole issue presented by this case is whether the Sergeant position exercises
sufficient supervisiory authority, as defined in 26 M.R.S.A.   966(1), over the Patrol
Officers that the Sergeants should be excluded from a bargaiing unit conisting of the
Patrol Officers.

	Unlike the National Labor Relations Act, the Municipal Public Employees Labor
Relations Law ("MPELRL") grants supervisors collective bargaining rights and permits 
the inclusion of supervisors in bargainingt units of subordinate employees in certian

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circumstances.  In Penobscot Valley Hospital and Maine Federation of Nurses and 
Health Care Professionals, No. 85-A-01, slip op. at 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 superisory employee's unit status to the 
	sound discretion of the hearing examiner.  MSAD No. 14 and East Grand
	Teachers Association, MLRB No.83-A-09, at 12 (Aug. 24, 1983).  Except
	in instances where the resulting one- or two-member supervisory unit 
	would contravene our policy of discouraging the proliferation, through
	fragmentation, of small bargaining units, we have approved the creation of
	such separate supervisory units. . . .  The purpose of creating separate 
	supervisory employee bargaining units is to minimize potential conflicts of
	interest within bargaining units, between supervisors and their subordinate
	employees, as well as to lessen conflicts of loyalty for supervisors
	between duty to their employer and allegiance to fellow unit employees. 

Section 966(1) gives guidance to the hearing examiner in identifying situations where
conflicting interests and loyalties may arise.  The relevant portion of   966(1) states:

	In determining whether a supervisory position should be excluded from
	the proposed bargaining unit, the executive director or his designee shall
	consider, among other criteria, if the principal functions of the position are
	characterized by performing such management control duties as
	scheculing, 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.

The focus of this three-part test is to determine whether the supervisor exercises a level
of control over employment-related issues that would likely result in a conflict of interest.
See Richmond Employees Ass'n and Town of Richmond, No. 94-UD-09, slip op. at 30
(MLRB Apr. 26, 1994).

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	Under the first portion of the test outlined in   966(1), I must consider whether the
princiapl functions of the Sergeant classification involve scheduling, assigning,
overseeing or reviewing the work of the Patrol Officers.  While the Sergeants have little
to do with setting the duty schedule, they do approve shift-swapping and covering vacant
shifts during vacations and sick time.  On the other hand, the Sergeants assign, oversee
and evaluate the work of the Patrol Officer with whom they serve on the 10-hour
evening/overnight shift.  While work assignments might be as informal as alternating
responding to calls during slow periods, the Sergeants determine the response to calls
and direct the Patrol Officers through issuing direct orders.  The Sergeants oversee the
work of the Patrol Officers through frequent direct observation and they review such
work through the on-going oral positive feed-back process.  In addition, the Sergeants
evaluate the Patrol Officers through the formal performance evaluation process, which
controls the granting of pay step increases.

	The Sergeants exercise the supervisory authority cited in the first tine of
  966(1), all of which may lead to conflicts between the Sergeants and the Patrol
Officers.  The issue here is whether the supervisory duties constitute the principal 
function of the Sergeant position.  As the hearing officer discussed in Rockport Police
Officers Association and Town of Rockport, No. 02-UD-05, slip op. at 11-12 (June 12,
2002), the percentage of time an employee spends performing specific supervisory 
duties is only one factor in determining the primary function; the more telling question is
whether the alleged supervisor is actively engaged in assigning and overseeing the work
of the subordinate employees.  The more opportunity a supervisor has to assign and
oversee work, the greater the potential for conflicts to arise.  Unlike the patrol sergeant in
Rockport, whose contact with the patrolmen was limited to shift changes and whose
supervision consisted of reviewing reports and cruiser dashboard video, the Sergeants
here have extended daily contact with the Patrol Officer on their shift and they are
supervising those patrolmen continuously.  Given the size and organizational structure of 
the police department, it is not surprsing that the Sergeants spend most of their time
functioning as law enfrocement officers; however, that does not diminish the importance

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of their exercise of supervisory authority.  The level of this activity combined with the
Sergeants' formal annual evaluation of the Patrol Officers' performance, persuades me
to conclude that the supervisory duties are the principal function of the Sergeants, within
the meaning of the   966(1) test.

	The second tine of the test in   966(1) requires an examination of whether the
Sergeants perform duties that are "distinct and dissimilar" from the duties performed by
the employees that they supervise.  This requirement has been described as:

	[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 interests of
	the supervisor with the interests of the employer and cause conflicts of
	interest [with other employees].

State of Maine and MSEA, No. 91-UC-04, slip op. at 15 (MLRB Apr. 17, 1991).  The
Sergeants' only relevant activity is their participation in hiring interviews; however, Patrol
Officers have participated in this as well.  All authority in these areas, as well as the
authority to suspend or discharge employees, is held by the Police Chief.

	Turning to the third tine of the   966(1) test, the Sergeants have no role in
adjusting grievances or establishing performance standards.  The Sergeants do take
corrective measures to implement the performance standards set by the Police Chief.
The Sergeants may issue both oral and written reprimands and, in certain limited
circumstances, may relieve Patrol Officers from duty, subject to prompt review by the
Police Chief.  The Sergeant who testified at the hearing has never sent an employee
home during his 11 years' service as a Sergeant.

	Evaluation of the criteria in   966(1) shows that the Sergeants exercise
substantial supervisory authority that could place them in conflict with the Patrol Officers;
therefore, the Sergeants will be assigned to a separate bargaining unit.  The record
established that the Sergeants share a clear and identifiable community of interest and
together constitute an appropriate bargaining unit.  In reaching this decision, I have

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considered the Board's policy against the proliferation of small bargaining units,
particularly the formation of one- and two-member supervisory units, as outlined in 
Rockport, supra, at 14-15.  The Board policy must yield to the mandate of the Statute,
particularly in situations like the present one where the exercise of supervisory duties is
well-established, and the bargaining unit has been in existence for a substantial time,
without the supervisors having been included.

                                      CONCLUSION

	On the basis of the foregoing facts and discussion and pursuant to the provisions 
of 26 M.R.S.A.   966, the petition for unit determination filed on April 12, 2012, by Gino
Bianchini, President of the Freeport Police Benevolent Association is denied.  The
following described unit is held to be appropriate for purposes of collective bargaining:

	INCLUDED:  Sergeant.

	EXCLUDED:  Police chief and all other employees of the Town of Freeport.

Dated at Augusta, Maine, this 19th day of June, 2012.

								   /s/___________________________
                                   Marc P. Ayotte
                                   Executive Director


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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