Council 74 AFSCME and MSEA and University of Maine, No. 77-A-04, affirming No. 77-UD-10 & 77-UD-11. STATE OF MAINE MAINE LABOR RELATIONS BOARD MLRB No. 77-A-04 [Issued: May 11, 1977] __________________________________ ) COUNCIL NO. 74 ) AMERICAN FEDERATION OF STATE, ) COUNTY AND MUNICIPAL EMPLOYEES ) REPORT OF APPELLATE REVIEW ) and ) OF ) MAINE STATE EMPLOYEES ASSOCIATION ) UNIT DETERMINATION REPORT ) and ) ) THE UNIVERSITY OF MAINE ) __________________________________) This case comes to the Maine Labor Relations Board by way of an appeal pursuant to 1028(2) of the University of Maine Labor Relations Act result- ing from a Unit Determination Report issued by the Executive Director on February 24, 1977, involving the University of Maine police bargaining unit. The case originally came before the Executive Director, as hearing examiner, as the result of the filing of MLRB Form 2, "Petition for Appropriate Unit Determination," by Council No. 74, American Federation of State, County and Municipal Employees dated July 23, 1976, and filed with the Maine Labor Relations Board on July 23, 1976. An MLRB Form 2, entitled "Motion to Inter- vene, Petition for Appropriate Unit DeterminatTon," and an MLRB Form 2, en- titled "Petition for Appropriate Unit Determination" dated September 21, 1976. were filed with the Maine Labor Relations Board by the Maine State Employees Association on September 21, 1976. A unit determination hearing was held on November 3, 1976, in Room 114 of the State Office Building and on November 22, 1976 in Room 122 of the State Office Building, as provided in l024(2) of the University of Maine Labor Relations Act. The job categories under considera- tion in the Unit Determination Report of February 214, 1977, the contents of which are incorporated herein by reference, were Police Officer, Police Corporal, Police Sergeant, Police Detective, Security Guard I, Security Guard II, Police Communications Coordinator, Security Registrar and Clerk, and Security Officer. This case now comes to the Maine Labor Relations Board by way of a Notice of Appeal dated February 28, 1977, and filed by F. Paul Frinsko, Attorney for the University of Maine, on March 1, 1977. This case was heard on appeal by the Maine Labor Relations Board on March 16, 1977, in the Portland Jetport Conference Room, Portland, Maine, Walter E. Corey, Chairman, presiding, with Robert D. Curley, Employer Representative and Michael Schoonjans, Employee Representative. Present thereat for the appellant, University of Maine, were: F. Paul Frinsko, Esquire Attorney, University of Maine Samuel J. D'Amico Associate Vice-Chancellor for Employee Relations, University of Maine Alan C. Reynolds Director, Police & Safety, Orono Horatio A. Quinn Director, Police & Safety, Portland- Gorham [-1-] ____________________________________________________________________________________ Present thereat for Council No. 74, American Federation of State, County and Municipal Employees was: Stephen P. Sunenblick, Esquire Attorney, Council No. 74, American Federation of State, County and Municipal Employees. Present thereat for the Maine State Employees Association was: John J. Finn, Esquire Attorney, Maine State Employees Association. No objections were raised with respect to the jurisdiction of the Board to hear this case and, as there were no matters of procedure to be disposed of, the Board proceeded directly to the matters of substance to be raised by the parties. The appellant, the University of Maine, alleged (1) that the position Police Sergeant was a supervisory position and should be excluded from the police bargaining unit and, (2) that the positions Security Guard I and Security Guard II lack a community of interest with the other positions in the police bargaining unit and should be excluded therefrom. Upon review of the pleadings, the record and transcript of the unit determination proceeding, and the testimony at the appellate hearing, as well as having observed the demeanor of the witnesses at the appellate hearing, we find that the Police Sergeant is not a supervisor as defined in 1022(9) of the University of Maine Labor Relations Act and the Security Guard I and Security Guard II share a community of interest as stated in 1024(2) with the other positions in- cluded in the police bargaining unit. While performing certain limited supervisory functions, the Police Ser- geant also performs the same functions as the officers he supervises. The testimony at the unit determination proceeding indicated that a minimal amount of time, about lO%, is spent on the supervisory functions. The remaining 90% of the Police Sergeant's time is spent performing Police Officer functions. A Police Sergeant sits on the Personnel Review Board, but a Police Officer also sits on the Board. Title 26 MRSA 1022(9) states: "Supervisory employee" means any employee whose principal work tasks are characterized by performing such management control duties as scheduling, assigning, overseeing and review- ing 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, in applying other established personnel poli- cies and procedures and in enforcing a collective bargaining agreement or estab- lishing or participating in the establishment of performance standards for subor- dinate employees and taking corrective measures to implement those standards. We conclude that the Police Sergeant's principal work tasks are not characterized by the duties described in the definition of supervisory employee and is not a supervisory employee as defined in 1022(9) of the University of Maine Labor Relations Act. Consequently, the decision of the Executive Director to in- clude the Police Sergeant in the police bargaining unit should be and hereby is AFFIRMED. -2- ____________________________________________________________________________________ The other positions appealed were that of Security Guard I and II. The Security Guard I's, on the Orono campus, are used exclusively for security in the dormitories, except in emergency situations. They wear a uniform which differs from the University police uniform. They do not have the power of arrest. In the event of a problem or disturbance, they contact the local University police for assistance. The Security Guard I at the Gorham campus patrols parking areas and writes parking trckets as well as investigates complaints. The position of Security Guard II, former- ly called "watchman," patrols a scheduled route to check on the security of and for damage to the buildings and performs (or causes to be performed) emergency maintenance on the buildings. The Security Guards at the Fort Kent, Presque Isle and Machias campuses infrequently perform certain main- tenance functions and then only when there is insufficient security work, as happens from time to time in the summer months. The Security Guard wears a uniform with a distinctive patch rather than overalls typically associated with the maintenance function. It is apparent and we therefore conclude that the principal functions of Security Guard I and Security Guard II involve security rather than maintenance, and their incumbents share a community of interest with the other positions included in the police bargaining unit. Consequently, the decision of the Executive Director to include the Security Guard I and Security Guard II in the police bargaining unit should be and hereby is AFFIRMED. We direct that the appeal entered by F. Paul Frinsko on March 1, 1977, be and hereby is DENIED, and that the Executive Director proceed with a secret ballot election as specified in 26 MRSA 1025, and Rule 3.01 et seq. of the Rules and Procedures of the Maine Labor Relations Board for the University of Maine police unit. Any organization seeking to appear on the ballot, other than those who have previously filed a petition pursuant to Rule 3.01 of the Rules and Procedures of the Maine Labor Relations Board shall file a petition and showing of interest with the Maine Labor Relations Board within seven (7) days from the date of this Decision and Order. Dated at Augusta, Maine, this 11th day of May. 1977. MAINE LABOR RELATIONS BOARD /s/________________________________________ Walter E. Corey, Chairman /s/________________________________________ Robert D. Curley, Employer Representative /s/________________________________________ Michael Schoonjans, Employee Representative -3- ____________________________________________________________________________________