Council 74 AFSCME and MSEA and University of Maine, No. 77-UD-10 & 77-UD-11, affirmed 77-A-04. [STATE OF MAINE] [MAINE LABOR RELATIONS BOARD] [Case Nos. 77-UD-10 & 77-UD-11] [Issued: February 24, 1977] _______________________________________ ) COUNCIL NO. 74 AMERICAN FEDERATION OF ) STATE, COUNTY AND MUNICIPAL EMPLOYEES ) ) Petitioner ) ) and ) ) MAINE STATE EMPLOYEES ASSOCIATION ) UNIT DETERMINATION REPORT ) Petitioner ) ) and ) ) THE UNIVERSITY OF MAINE ) ) Respondent ) _______________________________________) As the result of a Petition for Appropriate Unit Determination dated July 23, 1976, filed by John J. Ezhaya, Field Representative for Council No. 74, American Federation of State, County and Municipal Employees, and a Petition for Appropriate Unit Determination dated September 21, 1976, filed by John J. Finn, Esquire, on behalf of the Maine State Employees Association and a Motion to Intervene of the same date filed by Mr. Finn on behalf of the Maine State Employees Association, a unit determination hearing was con- ducted commencing at 10:00 a.m. (EST) on Wednesday, November 3, 1976, at the State Office Building in Augusta and continuing on Monday, November 22, 1976, to a conclusion, said hearing being held as provided in 1024, 2, of the University of Maine Labor Relations Act. During the foregoing hearings, the various interest groups appearing as petitioners and respondent were represented as follows: For Council No. 74, American Federation of State County & Municipal Employees: Charles Sherburne Executive Director, Council No. 74 AFSCME John J. Ezhaya Field Representative, Council No. 74 AFSCME Walter Stilphen Police Officer, UMO Richard Lincoln Police Officer, Gorham For the Maine State Employees Association: John J. Finn, Esquire Attorney, Maine State Employees Association Nancy J. Spieczny Attorney, Maine State Employees Association Gloria L. Thomas Maine State Employees Association For the University of Maine: F. Paul Frinsko, Esquire Attorney, University of Maine Samuel J. D'Amico Associate Vice Chancellor for Employee Relations, University of Maine Alan G. Reynolds Director, Police & Safety, Orono Horatio A. Quinn Director, Police & Safety, Portland-Gorham Roger G. Spear Vice Presidient for Finance & Administration Farmington [-1-] ____________________________________________________________________________________ Stephen L. Weber Assistant to the President, Orono Walter P. Fridinger Vice President for Finance and Administration, Portland-Gorham Clifford H. West, Jr. Director of Administrative Services Augusta During the course of the hearing, it became apparent there was some discrepancy a to the specific titles applied to persons involved in the bargaining unit under examina- tion, that unit being the police unit set forth in 1024, 1, Sub- F, of the University of Maine Labor Relations Act. As the result of these incongruities, during the course of the unit determination proceeding several amendments were offered by the petitioners and allowed by the hearing examiner. In this respect, Council No. 74, AFSCME, amended their original petition so that the job categories ultimately alleged to be appropriate are: Police Sergeant Police Detective Police Corporal Police Officer Security Guard I Security Guard II Police Communication Coordinator Security Registrar and Clerk The Petition for Appropriate Unit Determination of the Maine State Employees Association was also amended during the course of the hearings and ultimately involved the following job categories: Police Communication Coordinator Police Corporal Police Sergeant Police Officer Police Detective Security Officer At the hearing held on November 3, 1976, Council No. 74, American Federation of State, County & Municipal Employees made an oral motion to (1) dismiss the Motion to Intervene of the Maine State Employees Association dated September 21, 1976, because it was untimely under Rule 1.08, and (2) dismiss the unit determination petition of the Maine State Employees Association of the same date because any filing after an initial unit determination petition was alleged to have intervenor status and was also allegedly untimely under Rule 1.08. These motions were formalized by being reduced to writing and were filed with the Maine Labor Relations Board on November 15, 1976, the contents of which are incorporated herein by reference. On November 18, 1976, the Maine State Employees Association filed a Memorandum in Opposition to Motion to Dismiss dated November 17, 1976, with the Maine Labor Relations Board. According to the schedule set forth at the November 3rd hearing, the parties had until November 24, 1976, to file rebuttal memoranda. None were filed. The first item to be addressed is the motion of the American Federation of State, County & Municipal Employees to dismiss the Motion to Intervene filed by the Maine State Employees Association. Review of the pertinent documents involved indicates that the Petition for Appropriate Unit Determination filed by Council No. 74, AFSCME, was dated July 23, 1976, and filed with the Maine Labor Relations Board on that same date. Both the Unit Determination Petition and the Motion to Intervene filed by the Maine State -2- ____________________________________________________________________________________ Employees Association were dated September 21, 1976, and filed with the Maine Labor Relations Board on that same date. It is clear from these dates that the ten-day time period referred to in Rule 1.08(F) has clearly been exceeded, and the Motion to Intervene of the Maine State Employees Association is thereby untimely. The Maine State Employees Association has alleged, in part, "AFSCME cannot block intervention by another interested employee organization as being untimely under the ten working day time limit of MLRB Rule 1.08(F) unless it has given notice to that other organization because that would be a denial of due process regardless of whether the rules require such notice." To substantiate the proposition that AFSCME must give notice, even though not required to do so by the rules, if it is to block an intervention as being untimely, the Maine State Employees Association has cited the cases of Allen B. Dumont Laboratories, Inc., 77 NLRB 121, 22 LRRM 1009 (1948) and Sampsel Time Control, Inc., 80 NLRB 1250, 23 LRRM 1218 (1948). Both of these cases resulted from situations where the intervenor did not attend the initial hearing in the unit determination matter, but was successful in subsequently being placed on the ballot. These cases may be distin- guished from the instant situation where the Maine State Employees Association did appear at all hearings involving the composition of the bargaining unit under discussion herein and where their rights and prerogatives under both the statute (Chapter 12, Title 26 M.R.S.A.) and the Rules and Procedures of the Maine Labor Relations Board [Rule 3.01(C)] are protected. In both Dumont and Sampsel, the intervention was necessary to afford to the employees the fullest freedom in being able to select the bargaining agent of their choice and to put the intervenor union on the ballot. The granting of the AFSCME Motion to Dismiss the MSEA Motion to Intervene in this given instance does not deprive the sub- sequently identified employees in this bargaining unit of the right to select their bargaining agent from any union or employee organization with the requisite showing of interest either as a petitioner or intervenor under either Title 26 M.R.S.A. 1025 or Rule 3.01(B) or (C). An evaluation of Rule 1.08(F) indicates that motions to intervene shall be filed no later than ten working days from the date of the posting of the peti- tion; however, Rule 3.01(C) sets forth a seven day time limit in which the ten per cent showing of interest from intervenors must be presented. The latter seven-day time period runs from the date of the official posting of the election request or petition or, in the event of an intervening unit determination report, seven days after the expiration of the appeal period allowed for such a report. Therefore, it is obvious under the Rules and Procedures of the Maine Labor Relations Board that there are two different standards for intervenor status: first, provisions in Rule 1.08 for interve- nors in unit determination petitions and, second, provisions in Rule 3.01(C) for intervenors to be on the ballot. Rule 1.08(F) must be observed in order that the unit determination hearing process can be an orderly one and allow the participants therein to have reasonable and timely knowledge of the identity of all parties concerned as well as having the ability to prepare for the various arguments which might be advanced by the particular interest group(s). It is for the foregoing reasons that the AFSCME Motion to Dismiss the MSEA Motion to Intervene should be and hereby is GRANTED. The second procedure in line for consideration is the AFSCME Motion to Dismiss MSEA Petition for Appropriate Unit Determination. The MSEA Petition for Appropriate Unit Determination, as indicated earlier, was dated and filed with the Maine Labor Relations Board on September 21, 1976. It is the contention of Council No. 74, American Federation -3- ____________________________________________________________________________________ of State, County and Municipal Employees, that the subsequent Petition for Appropriate Unit Determination filed by the Maine State Employees Association, because it is second in time to the initial petition of AFSCME filed on July 23, 1976 is, ipso facto, vested with intervenor status. At the November 3rd hearing, Mr. Sherburne, on behalf of Council No. 74, indicated that it was National Labor Relations Board practice that all subsequent petitions must, of necessity, be considered as intervening petitions. The National Labor Relations Board has formulated a doctrine that when petitions were filed after the first hearing and said petitions are concerned with employees involved in that hearing, the subsequent petitioners then stand in the position of intervenors. See Ford Motor Company, 100 NLRB 813 (1952). Such is not the case with the petition of the Maine State Employees Association as it was clearly filed prior to the first hearing date on November 3, 1976. In the instant case both the Petition for Appropriate Unit Determina- tion and the showing of interest submitted by the Maine State Employees Association were prior to the first hearing date and fully complied with Rules 1.03, 1.05 and 1.06 of the Unit Determination Rules. In its memorandum of November 17, 1976, the Maine State Employees Association alleges "Rule 1.08 governing intervention does not purport to cover independent unit petitions and the time limits of Rule 1.08(F) do not apply to MSEA's petition. An independent petition for appropriate unit determination is not un- timely because it is filed after another employee organization has filed a unit petition." The review of the Unit Determination Rules by this hearing examiner indicates no time constraints for independent unit determination petitions, nor is any such restraint imposed in the unit determination process contemplated under the provisions of Title 26 M.R.S.A. 1024, 2. Accordingly, the hearing examiner must concur with the MSEA position that its Petition for Appropriate Unit Determination is an independent petition supported by the required showing of interest and constitutes a cross-petition, not an intervention. As such, the motion of the American Federation of State, County and Municipal Employees to dismiss the Petition for Appropriate Unit Determination filed by the Maine State Employees Association should be and hereby is DISMISSED. The job categories under consideration in this report are enumerated on page 2 hereof. All classified employees of the University of Maine receive certain similar benefits and, to the extent these benefits are similar, there is a certain, implied community of interest among those benefits. The benefits received by all persons in job categories under consideration herein are: Insurance: A comprehensive health, life and accidental death and dismember- ment is provided for all full-time regular employees, with the cost shared by the employee and the University. The comprehensive plan provides the following: (1) Life Insurance - equal to one times the basic annual salary rounded to the next highest $1,000. (2) Accidental Death and Dismemberment Insurance - $2,000 in the event of accidental death and up to $2,000 in the case of dismemberment. (3) Health Insurance - mandatory personal health insurance with option coverage for spouse or family. -4- ____________________________________________________________________________________ (4) Long-term Disability Plan - provides monthly income for extended disability for all full-time regular employees who have completed three years' continuous service or attained age thirty. Vacation: Continuous Years of Service Work Days Per Year 1 - 5 12 6 - 10 15 11 - 15 18 16 - 20 21 21 and over 24 Holidays: Eleven holidays per year. Sick Leave: One day of sick leave for each month of continuous service; accumulates to 90 workdays. Bereavement Leave: Three paid days for death in immediate family, with a maximum of six days per fiscal year. Child-Bearing Leave: Defined pay leave up to 6 weeks for birth of child, to be paid upon return to work. Child-Rearing Leave: Unpaid leave for either parent up to one year. Jury Duty Leave: Employee receives normal pay for first 2 weeks, and after 2 weeks, the difference between jury pay and regular pay. Witness Leave: University pays difference between witness pay and regular pay, not to exceed 2 weeks, unless subpoenaed for job activities other than University job. Military Leave: University pays regular pay for active duty for training not to exceed ten working days. The first job category under examination in this report is that of police officer. POLICE OFFICER Wages: $3.48 - $4.44 per hour Frequency of Payment: Weekly. Paid (Wage Band 13) by the University of Maine. In the event the employee works more than the scheduled 40 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. -5- ____________________________________________________________________________________ Hours: Five days a week on a four-week shift schedule. There are three shifts of eight hours each, running from 8 a.m. to 4 p.m.; 4 p.m. to 12 midnight and from 12 midnight to 8 a.m. Responsible to: Director of Public Safety. Employees in this job category are evaluated by the Director of Public Safety and are also corrected and/or disciplined by the Director of Public Safety. Job Description: Employee does skilled, complicated and confidential work in the protection of life and property in the enforcement of University regulations, Federal, State and local laws, and in the detection and apprehension of violators. Work involves patrolling, issuing traffic tickets, directing traffic, handling emergencies and giving informational assistance. Work is usually well defined and accomplished within predetermined departmental procedures but judgment and initiative are occasionally required in emergency and criminal apprehension conditions. Duties of the Job: Patrols campus on foot or in a motor vehicle; checks doors and windows and maintains an alertness for suspicious incidents and investigates them. Directs traffic, enforces traffic and parking regulations and issues tickets to violators. Makes daily reports of activities. Takes predetermined action in emergencies such as accidents, fire and illness. Gives directions and general informa- tion. Investigates minor complaints. Arrests individuals for violations of the State criminal law and serves as prosecuting officer at the resulting criminal court trials. The foregoing information which has been extracted with respect to the job category of police officer was received not only on the petitioner's case but also was consistent with documents submitted by the respondent University of Maine. In particular, the job description of police officer is contained on University of Maine Exhibit #1 and, as appears herein, is consistent with their exhibit. The hearing examiner has taken into consideration the argument of the University of Maine presented on page 9 of its post-hearing brief regarding whether police personnel are "University employees." In that document, the University points to Title 26 Section 1022 (11)(A) which excludes from collective bargaining those persons who are "appointed to office pursuant to statute." In this regard, the University points to the provisions of Chapter 532 of the Private and Special Laws of 1865 which authorizes the University to appoint certain personnel. The power conferred to the trustees of the University by Chapter 532 of the Private and Special Laws of 1865 is a general power and it allows the trustees to appoint not only police officers, but also directors, professors, lecturers and teachers in order to permit the trustees to accomplish the objectives required in the running of the institution. In this respect, the hearing examiner agrees with the position of the Maine State Employees Association as exhibited on page 5 of their reply brief which says "thus, if the University's position were correct, it would apparently exclude all University -6- ____________________________________________________________________________________ employees from bargaining under the University of Maine Labor Relations Act. All are appointed pursuant to statute in precisely the same sense at the police personnel." Such an interpretation of Chapter 532 of the Private and Special Laws of 1865 would render the University of Maine Labor Relations Act (Chapter 603 of the Public Laws of 1975) meaningless. Such was not the intent of the Legislature in passing the University of Maine Labor Relations Act in 1975 and, in the opinion of the hearing examiner, the University of Maine Labor Relations Act must be read consistent with a legislative intent that employees of the University system be allowed to organize and engage in the collective bar- gaining process. In this respect, the hearing examiner agrees with the position of the Maine State Employees Association taken on page 2 of its brief where the Emple Knitting Mills case [155 Me. 270, 274; 153 A.2d 118 (1959)] was cited. In Emple, the Court said, "The language of a statute must be so interpreted as to carry the obvious purpose which the Legislature had in mind when it enacted the legisla- tion and the literal meaning of the language employed must give way if otherwise the legislative policy and goal will be frustrated." It is the hearing examiner's belief that both the goals and intent of the Legislature were to foster an effective collective bargaining system for employees of the University of Maine; therefore, it is not his opinion that Chapter 532 of the Private and Special Laws of 1865 should be construed in such a manner as to prohibit these goals and objectives of the Legislature. Accordingly, this report will be consistent with the declared purpose of the University of Maine Labor Relations Act found in Section 1021 of Title 26 Maine Revised Statute where it is stated: "It is declared to be the public policy of this State and it is the purpose of this chapter to promote the improvement of the relation- ship between public employers and their employees by providing a uniform basis for recognizing the right of University of Maine employees and the Maine Maritime Academy employees to join in labor organizations of their own choosing and to be represented by such organizations in collective bargaining for terms and conditions of employment." It is the opinion of the hearing examiner that the job category of police officer is suitable for inclusion in the bargaining unit under consideration herein. SO ORDERED. The next two job categories under consideration are that of police corporal and police sergeant. The following testimony was developed: POLICE CORPORAL Wages: $3.67 to $4.71 per hour Frequency of Payment: Weekly. Paid based on a 40 hour work by the University of Maine. In the week (Wage Band 15) event the employee works more than the scheduled 140 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. -7- ____________________________________________________________________________________ Hours: Variable. This position works both at bookstores, dormitories or Police Officer shifts, annotated earlier in this report. Responsible to: Employees in this category are evaluated by a Police Sergeant, or if working in the bookstore by a Police Lieutenant. He is disciplined by the Police Sergeant and/or Police Lieutenant. His schedules are prepared by either the Police Lieutenant or the Assistant Director of Public Safety. Job Description: Employee does routine police work with added supervisory responsibilities in the absence of a Sergeant in enforcement of University regulations and in the protection of life and property. Work involves all the duties of a Police Officer plus supervisory and administrative duties in effecting com- pliance with existing security programs. Duties of the Job: Patrols campus on foot or in a motor vehicle; checks doors and windows; maintains an alertness for suspicious incidents and investigates them. Directs traffic, enforces traffic and parking regulations and issues tickets to violators. Makes daily report of activities. Takes predetermined action in emergencies such as accidents, fire and illness. Gives direction and general information. Investigates minor com- plaints. Directs police operations on an assigned shift. Supervises a small group of police personnel. Directs the police function on special events. Does detailed investigative work when assigned and maintains a liaison with other local and state police officers. POLICE SERGEANT Wages: $3.86 to $4.98 per hour Frequency of Payment: Weekly. Paid based on a 40 hour work by the University of Maine. In the week (Wage Band 17) event the employee works more than the scheduled 40 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. Hours: Five days a week on a four-week shift schedule. There are three shifts of eight hours each, running from 8 a.m. to 4 p.m.; 4 p.m. to 12 midnight and from 12 midnight to 8 a.m. Responsible to: Director or Assistant Director of Public Safety. He is evaluated by the Director or Assistant Director of Public Safety and he is corrected and/or disciplined by the Director or Assistant Director of Public Safety. -8- ____________________________________________________________________________________ Job Description: Employee does routine police work with added supervisory responsibilities in enforcement of University regulations and in the protection of life and property. Work involves all the duties of a Police Officer plus supervisory and administrative duties in effecting compliance with existing security programs. Duties of the Job: Patrols campus on foot or in a motor vehicle; checks doors and windows; maintains an alertness for suspicious incidents and investigates them. Directs traffic, enforces traffic and parking regulations and issues tickets to violators. Makes daily report of activities. Takes predetermined action in emergencies such as accidents, fire and illness. Gives direction and general information. Investigates minor com- plaints. Directs police operations on an assigned shift. Supervises a small group of police personnel. Directs the police function on special events. Does detailed investigative work when assigned and maintains a liaison with other local and state police officers. In addition to the foregoing formal job descriptions which were obtained not only from testimony offered by petitioners but also agree with University Exhibits 2 and 14, additional testimony as to the functions of these two job categories was offered at the Unit Determination hearing on November 22, 1976. Testimony from Alan Reynolds, Director of Public Safety at the University of Maine at Orono, indicates that there are only three corporals in the University of Maine system and they are at the Orono campus. One is a plainclothes officer assigned to the bookstore to investigate and prevent shoplifting; one is used to fill in for a Sergeant and one is used to supervise dormitory Police Officer activities. The third Corporal supervises some seven or eight dormitory Police Officers who rotate on that special detail. Mr. Reynolds' testimony with respect to the job category of Sergeant indicates that the Sergeants review work and supervise performance of subordinate employees including a Corporal, Police Officers and Detectives. This is accomplished by implementing "department policy." The extent of this "supervision" involves checking the notebooks of subordinate officers and riding with subordinate officers on a check basis. The Police Sergeant works as a regular Police Officer if there is not a full compliment of Police Officers on a particular shift. The testimony was that Police Sergeants perform routine patrol duties "frequently" as a result of large personnel turnover in the lower police ranks. According to Mr. Reynolds, Police Sergeants have the authority to discipline subordinates by taking their badge, sending them home, investing complaints about their performance and making recommendations as to discipline. Testimony from Walter Stilphen, Police Officer at University of Maine at Orono, indicates that the four Sergeants there operate on patrol functions, check buildings, and write citations, all identical to the duties performed by both Police Officers and Police Corporals. Mr. Stilphen's testimony was that Police Sergeants at the University system spend 9O% of their time doing the same job functions as Police Officers. Moreover, according to Mr. Stilphen, a "supervisory officer" need not be a Sergeant -9- ____________________________________________________________________________________ or Corporal but may also be a Senior Patrolman or Senior Police Officer, thus implying a community of interest and similarity in job function between the three titles of Police Officer, Police Corporal and Police Sergeant. The University of Maine, at page 3 of its post-hearing brief, alleges that the positions of Police Corporal and Police Sergeant are supervisory and should be excluded from the bargaining unit as proposed by the petitioners. While University of Maine Exhibit 19 demonstrates that both the Corporal and/or Sergeant become the supervising officer on patrol, the term "supervising officer" is one of art as it appears at page 9 of University Exhibit 19 and indicates the responsibilities for the supervising officer. While the duties of the supervising officer as enumerated in University of Maine Exhibit 19 are clearly of a supervisory nature and such as might be appropriate for inclusion of the particular "supervisory officer job category" in the supervisory classified bargaining unit contemplated by Section 1024 paragraph 1 subparagraph E of the University of Maine Labor Relations Act, it is not apparent that either the Police Corporal or Police Sergeant positions devote that much time to their particular supervisory functions as to warrant a determination that their "principal work tasks" as defined in Section 1022 paragraph 9 of the University of Maine Labor Relations Act are sufficient to warrant their inclusion in a supervisory unit. Referring back to Mr. Stilphen's testimony, it was his opinion that the Police Corporals and Police Sergeants perform regular "line" police duties for at least 9O% of their work shifts. Even an examination into the duties of the job of Police Sergeant, as enumerated above, indicates that his primary duties (Items 1 and 2) involve patrolling the campus on foot or in a motor vehicle and directing traffic as opposed to his supervisory duties (which are Items 7 and 8) which involve directing police operations on an assigned shift and supervising a small group of police personnel. It appears to the hearing examiner, from page 10 of the University's post-hearing brief, that it has argued against itself with respect to the positions of Police Corporal and Police Sergeant. The University has taken the position that "the need to insure plant protection employees in a time of labor unrest and to avoid conflicting loyalties during periods of labor unrest" are applicable in this Unit Determination proceeding. Counsel for the University of Maine has argued that there should be a separate and dis- tinct bargaining unit for the University Police Officers, consistent with the Unit Deter- mination report of September 22, 1976, which established a separate and distinct bargain- ing unit for State Police Officers for the aforesaid reasons. In that decision of September 22, 1976, the State Police bargaining unit consists of troopers, corporals and sergeants. By reference to the State Employees Unit Determination Decision, the Univer- sity has raised the issue of why police employees employed by it should be treated differ- ently than police employees employed by the Department of Public Safety of the State of Maine. With the similarity of job functions being what they are and there being no justi- fication to handle the positions of Police Sergeant and Police Corporal differently than the positions of State Police Corporal and State Police Sergeant under the State proceed- ings, it is the opinion of the hearing examiner that the job categories of Police Corporal and Police Sergeant should appropriately be included in the police unit under consideration herein. This rationale coupled with the fact that neither the Police Sergeant nor Police Corporal has a direct role in hiring and firing of employees and has only limited problem-solving authority (Stilphen, transcript page 23; MSEA Brief -10- ____________________________________________________________________________________ page 10) leads the hearing examiner to conclude that the positions of Police Corporal and Police Sergeant should be included in the bargaining unit under consideration herein. SO ORDERED. The next job category under consideration is that of Police Detective. POLICE DETECTIVE Wages: $3.86 to $4.98 per hour Frequency of Payment: Weekly. Paid based on a 40 hour work by the University of Maine. In the week (Wage Bank 17) event the employee works more than the scheduled 40 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. Hours: Generally from 8 a.m. to 5 p.m. with the possibility of irregular hours. Responsible to: Police Lieutenant and/or Director of Public Safety. Evaluated by Lieutenant and/or Director of Public Safety. Corrected or disciplined by the Director of Public Safety. Job Description: Employee does skilled, investigatory and confidential police work in the protection of life and property in the enforcement of State laws and University regulations. Performs investigations for the detection and apprehension of violators. Work involves patrolling and performing detailed investigative work and maintaining records necessary for the operation of a criminal investigation division. Duties of the Job: Patrols the campus on foot or in a motor vehicle maintaining an alertness for suspicious incidents and investigates them. Performs overt and covert investigations as necessary to enforce the criminal law and provide protection of life and property. Makes daily report of activities. Is thoroughly familiar with modern methods of scientific criminal investigation and detection, including but not limited to the following: (a) interrogation (b) police photography (c) fingerprinting and identification procedures and (d) analysis of illegal drugs. Maintains liaison with local and State Police criminal investigation units. Assists in training and instructing policemen. There is only one detective position involved according to the testimony of Alan Reynolds, Director of Public Safety at the University of Maine at Orono and Bangor. The foregoing job description and duties of job were taken from and agree with University of Maine Exhibit 3. This particular job category went virtually unnoticed in the post-hearing briefs of both the petitioning labor organizations and the respond- ent University. On page 2 of the AFSCME brief, Mr. Sherburne takes position that Police Detectives are "a rank of Police Officers" and, therefore, work directly with all ranks of Police Officers and are interrelated with the functions of the department. The foregoing job description and duties of job which have been enumerated in this -11- ____________________________________________________________________________________ report are clearly of a police nature and make the position of Police Detective appropriate for inclusion in the police unit under consideration herein. SO ORDERED. The next two job categories under consideration in the proceeding are Security Guard I and Security Guard II. The following evidence was developed: SECURITY GUARD I Wages: $2.80 to $3.57 per Frequency of Payment: Weekly. Paid hour based on a 40 hour by the University of Maine. In the work week (Wage Band 5) event the employee works more than the scheduled 40 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. Hours: Various shifts. Ranging from 11 p.m. to 7 a.m.; 10:30 p.m. to 6:30 a.m.; 7 a.m. to 3 p.m. or 3 p.m. to 11 p.m. Responsible to: Dormitory guard supervisor. Evaluated by dormitory security guard supervisor. Corrected or disciplined by dormitory security guard supervisor. Job Description Employee admits students to the residence hall employee is assigned to upon proper identification. Employee operates a telephone switchboard, keeps a log book and records violations. Employee guards building against fire and theft. Duties of the Job: Admits students after checking identification card or signature on sign- out card. Operates telephone switchboard. Records violations of sign-out procedures. Keeps a log book on which irregularities are posted. Makes out blue overnight slip or records an absence on the regular sign-out card for a student who requests same by telephone. Guards building against fire and theft. SECURITY GUARD II Wages: $2.88 to $3.68 per Frequency of Payment: Weekly. Paid hour based on a 40 hour by the University of Maine. In the work week (Wage Band 6) event the employee works more than the scheduled 40 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. Hours: 8 p.m. to 4 a.m. -12- ____________________________________________________________________________________ Responsible to: Police Lieutenant and evaluated by Police Sergeant or Police Lieutenant. Corrected or disciplined by Police Sergeant or Director of Public Safety. Job Description: Employee does routine patrolling and checking of University buildings and facilities at night. Work involves reporting items needing attention to the proper authorities, insuring buildings are properly locked and that no unauthorized personnel are in restricted areas. Duties of the Job: Patrols campus using a watchclock to maintain orderly route and record of patrol. Patrols designated areas and investigates sus- picious incidents. Opens buildings for authorized entries. Calls various trades service shops in minor emergencies such as broken water pipes, loss of heat, etc. Makes a simple report of daily activities. The foregoing job descriptions and the duties of the particular jobs were taken from and are consistent with University of Maine Exhibits 5 and 6. It is noted both from testimony from Police Officer Richard Lincoln and from the post-hearing briefs submitted by Paul Frinsko, Esq. that the Security Guards are without power of arrest. Detailed testimony from Alan Reynolds, Director of the Department of Public Safety at Orono, revealed that there is no background check performed for Security Guard personnel, and that they are uniformed but that their uniforms are different from University police uniforms and that they do not use badges. A Security Guard I is responsible for dormitory security and controls entry to that facility. Persons in the Security Guard I category are used exclusively at dormitories except on emergency situations. In the event of a disturbance or a problem, they would contact the local University Police Officer for assistance. Testimony from Mr. Alan Reynolds regarding the Security Guard II indicated that they also do not undergo a background check prior to being employed and that the position now called Security Guard II was formerly called "watchman." They typically do have radio communication with the dispatcher at the local campus police station. Like the Security Guard I, these employees are also uniformed but in a different uniform than that which is worn by "sworn" police personnel. Testimony from Horatio A. Quinn, Director of Police and Safety at Gorham indicated that Security Guard I at those locations has the primary duty of controlling parking. On those campuses, these employees generally are not subject to overtime or callback provisions. They do go on bank runs. According to Mr. Quinn, the Security Guard I positions under his control write parking tickets and they investigate complaints. The Security Guard II positions, again according to Mr. Quinn, work in park- ing areas and make rounds of the buildings at the start of their particular shifts. They perform "assigned patrol" duties after 9 p.m. by checking buildings and carrying watch- clocks. They wear blue uniforms, not unlike those worn by Police Officers, but their identifying patches read "Security" as opposed to those which are worn by Police Officers. The position taken by the American Federation of State, County and Municipal Employ- ees refers to the National Labor Relations Board policy which holds any unit that in- cludes guard or security personnel who are charged with the protection of the property of the employer or to protect the safety of persons on the employer's premises should -13- ____________________________________________________________________________________ be in a separate and distinct bargaining unit. The AFSCME Brief has identified the fact that in at least one instance the job descriptions of these employees state that they are engaged in "police work" in the protection of life and property, en- forcement of University regulations, and detection and apprehension of violations. While this is not exactly parallel to the job description for the Security Guard I, that description does indicate, inter alia, that the Security Guard I "records viola- tions." Security Guard II job description requires the "routine patrolling and checking of University buildings and facilities at night," clearly indicating a physical security function. It is the University's position (pages 5 and 6 of post-hearing brief) that these positions are: Primarily responsible for the physical security of the University buildings and equipment, for the most part follow assigned rounds, wear a different uniform, if any, frequently perform functions related to building and ground maintenance, and are more aptly described as "watchmen," the former job classification for these personnel. Accordingly,the University argues that these employees should, upon appropriate petition, therefore, be included in the Service and Maintenance unit enumerated in Title 26 Section 1024, paragraph 1 subparagraph D of the University of Maine Labor Relations Act based upon the precedent established by the Unit Determination Report for State employees dated September 22, 1976 where watchmen and physical security personnel were assigned to an Operations, Maintenance and Support Services Unit. The hearing examiner recognizes a number of differences with these particular positions as compared to the experiences with State Government. First of all, in State Government, there is a "security force" consisting of several hundred State Police Officers in the grades of trooper, corporal and sergeant. In the case of the University of Maine, the entire petitioned for police unit (as determined herein) numbers less than 60 persons for all seven campuses of the University system. The American Federa- tion of State, County & Municipal Employees is correct in asserting that the standards used by the National Labor Relations Board provide that employees who perform guard duties should be placed in a separate bargaining unit since Section 9(b)(3) of the National Labor Relations Act was added by the Taft-Hartly Act to prevent the National Labor Relations Board from including in a bargaining unit "any individual employed as a guard to enforce against employees and other persons rules to protect property of the employer or to protect the safety of persons on the employer's premises." According to the Developing Labor Law (edited by Charles J. Morris, published by the Bureau of National Affairs in 1971, page 224) "the intent of Congress in enacting 9(b)(3) was to ensure that during strikes or labor unrest an employer would have available loyal plant protection employees who would enforce rules for the protection of both persons and property." [This doctrine is further explained in McDonnell Aircraft Corp., 109 NLRB 967, 314 LRRM 1489 (1954)]. As a matter of fact, this philosophy is consistent with the last paragraph in the brief submitted by Mr. Frinsko on behalf of the University which requests that the need to insure plant protection employees in time of labor un- rest should be a compelling consideration in the formulation of the police unit for the applicable employees of the University of Maine. -14- ____________________________________________________________________________________ In spite of the fact that the positions of Security Guard I and Security Guard II differ substantially in compensation from certain police grades under consideration for this particular bargaining unit, it is the opinion of the hearing examiner that the job descriptions which are a part of the record in this case as University of Maine Exhibits 5 and 6, respectively, delineate sufficient job responsibilities involving the enforcement of "rules for the protection of both persons and property" to warrant their inclusion in this particular bargaining unit. The standard used by the National Labor Relations Board has held that persons fall within the "guard" category when their guard function is "an essential part of their duties." In the case of the Security Guard I, the job description sets forth the responsibility to guard the buildings against fire and theft and to insure physical security of the particular buildings by controlling access thereto. In the case of a Security Guard II, the job description sets forth the employee is responsible for "routine patrolling and checking of University buildings facilities at night." Since the work of the Security Guard II involves "reporting items needing attention to the proper authorities, insuring buildings are properly locked, and that no unauthorized personnel are in restricted areas," it is the opinion of the hearing examiner that job descriptions for both Security Guard classifications show that an essential part of the job duties of employees in these classifications involves the enforcement of the employer's [University's] rules and regulations. The number of employees in the job categories of Police Officer, Police Sergeant, Police Corporal and Police Detective, heretofore considered in this report, are not sufficient to insure the physical and plant security of the University facilities in the time of unrest; therefore, it is the opinion of the hearing examiner that the job categories of Security Guard I and Security Guard II are appropriate for inclusion in the bargaining unit under consideration herein. SO ORDERED. POLICE COMMUNICATIONS COORDINATOR Wages: $3.05 to $3.89 per hour Frequency of payment: Weekly. Paid based on a 40 hour work by the University of Maine. In the week (Wage Band 8) event the employee works more than the scheduled 40 hours per week, he is subject to overtime pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. Hours: Twenty-four hour duty, generally divided into three eight hour shifts per day. Responsible to: Director of Public Safety. Evaluated by Director of Public Safety. Corrected and/or disciplined by Director of Public Safety. -15- ____________________________________________________________________________________ Job Description: Employee performs responsible work in facilitating the flow of information from and between radio, telephones, teletype, cruisers and personal input received by the dispatch office. Work involves keeping logs, sending, receiving and filing teletypes, selling parking decals, receiving parking ticket monies, and checking weapons in and out of the office. Employee is also responsible for filing de- fect, warning, and interview cards and notes timed disks on the security guard's clocks. Work also involves receiving and releasing stolen, lost, and found articles. Duties of the Job: Facilitates the flow of information via various communications systems. Keeps logs. Sends, receives and files teletypes. Sells parking decals. Receives parking ticket monies. Checks weapons in and out of office. Files defect, warning and interview cards. Checks and records time disks on security clocks. Receives and releases stolen, lost and found articles. Testimony from the Director of Public Safety at Orono, Mr. Reynolds, indicated that there are three full-time and one part-time Police Communications Coordinators who work for his office. These personnel do wear uniforms but they are green and white and not like those worn by Police Officers. Testimony from Mr. Reynolds indicated that this particular job category also receives police calls from the local town of Veazie which is near the University of Maine campus in Orono. Persons filling this job are also responsible for controlling communications to the Building and Grounds Division of the University and to the University's fire department. This person may be responsible for some clerical functions when there is not a large volume of radio communications. The Police Communications Coordinator at Orono also holds and signs out firearms for students in residence at the University of Maine. Testimony from Mr. Quinn indicates that the Police Communications Coordinator assumes all phone call responsibilities for the Gorham, campus from 12 midnight to 8 a.m. At that location, the Police Communications Coordinator also handles the clerical functions for parking tickets and the reporting of the number of violations. In the post-hearing briefs submitted by the University, Mr. Frinsko took the position that the Police Communications Coordinator did not have a community of interest with those performing the police role. He suggested that persons in this job category really "only relay messages," "receives lower wages, has less responsibility and per- forms primarily routine work not involved in the exercise of judgment." The University also argues that the hearing examiner should follow the example used in the State Emplnyees Unit Determination Report of September 22, 1976 which placed police communications operators (dispatchers for the State Police force) in an administrative services unit. The hearing examiner finds this argument on behalf of the University to be com- pelling and agrees that, when and if petioned for, the position of Police Communications Coordinator should be included in the clerical services bargaining unit envisioned under 1024 1 Sub C of the University of Maine Labor Relations Act. In the meantime, the hearing examiner would advise the parties that there are particular needs and requirements surrounding the position of Police Communications Coordinator that will require special consideration for this job category when and if it is placed into a duly petioned for bargaining unit. For example, there are certain pay differential considerations which -16- ____________________________________________________________________________________ must be evaluated since the services of this job category are performed on a 24-hour basis along with the requirement that persons in this job category must be familiar with the particular "jargon" employed in radio communications with Police Departments and other Public Safety Departments for which that person may be dispatching. It is apparent to the hearing examiner from the testimony offered that persons in this par- ticular job category would not be responsible for the safety and/or physical security of University property and/or personnel in the time of unrest; therefore, it is the opinion of the hearing examiner that the position of Police Communications Coordinator should not be included in the bargaining unit under consideration herein. SO ORDERED. SECURITY REGISTRAR AND CLERK Wages: $3.30 to $4.20 per Frequency of payment: Weekly. Paid by for 40 hour week the University of Maine. In the event (Wage Band 11) the employee works more than the scheduled 40 hours per week, he is subject to over- time pay at the rate of one and one half times his regular rate. Benefits: As enumerated on page 4 of this report. Hours: 7:30 a.m. to 4:30 p.m. Responsible to: Director of Public Safety. Evaluated by Assistant Director of Public Safety. Corrected and/or disciplined by the Director of Public Safety. Job Description: Employee works under the supervision of Chief of Security in assigning vehicle parking areas to staff and student body and issuing decals and copies of traffic rules and regulations. Work involves maintaining adequate records on data relative to parking spaces allotted, motor vehicles registered, decals issued, daily security activity summaries, monthly reports, accident reports and other duties assigned by the Security Chief. Duties of the Job: Orders and maintains a supply of decals. Keeps records pertaining to registration of all vehicles. Maintains inventory of parking spaces per lot. Gives written and oral information as to vehicle regulations. Receives and answers calls on two-way radio system. Dispatches ambu- lance and cruisers with personnel to various points of needs and emer- gencies. Maintains files of daily activity sheets to Divisions of Police, Traffic and Parking, and Security Guard II. Prepares and maintains a file on vehicular accident reports. Provides information services, printed and oral, to visitors as to services, locations and street patterns within campuses. Follows and structures oral and written communications from a great variety of departments and services at the University. The foregoing job description and duties of job are taken from University of Maine Exhibit 8 as promulgated by the University of Maine. In addition thereto, testimony. from Police Officer Walter Stilphen on November 3, 1976 indicated that the Security Registrar and Clerk, in addition to being in charge of parking violations, accepting -17- ____________________________________________________________________________________ money for fines, and issuing decals, also works with work-study students. The position is nonuniformed and involves no field work or shift work. This testimony was confirmed by similar testimony from Mr. Reynolds on November 22, 1976. By virtue of the MSEA brief (page 9) this petitioner has taken the position that the Security Registrar and Clerk "is rightly considered to be a police support position...It is largely an adminis- trative/clerical position handling routine traffic and parking matters." Accordingly, the Maine State Employees Association indicates that they believe "that this position would more appropriately be placed in a clerical office, laboratory and technical unit." In this particular instance, the hearing examiner concurs with the thought and position of both the University of Maine and the Maine State Employees Association with respect to this position. It is clear from the job description and the duties involved that this job is primarily clerical in nature and, accordingly, should be included in the clerical unit envisioned in 1024 1 Sub C of the University of Maine Labor Relations Act, when and if petitions should be submitted for that unit. It is the opinion of the hearing examiner that the position of Security Registrar and Clerk should not be included in the bargaining unit under consideration herein. SO ORDERED. SECURITY OFFICER According to testimony offered by Samuel J. D'Amico, Associate Vice Chancellor for Employee Relations of the University of Maine, on November 3, 1976, the position of Security Officer has been eliminated as of May 1976 and not refilled. As of the date of that hearing, Mr. D'Amico indicated that the position existed on paper only and it was the intention of the University that it would be permanently eliminated when the job descriptions of the University system were reviewed and updated. This position was further stated in the University's Brief filed by Mr. Frinsko in which he says, "While this position technically exists at the moment, it is anticipated that it will be eliminated from the University classification system in the very near future." As it is the hearing examiner's understanding that there are no employees presently in this particular job category, no decision thereon will be rendered in this report. When and if the job category is filled, the matter may be resolved by a unit clarification proceeding pursuant to Rule 1.13 of the Unit Determination Rules and 1024 5 of the University of Maine Labor Relations Act. Dated at Augusta, Maine this 24th day of February, 1977 By:/s/_____________________________________ Parker A. Denaco, Executive Director Maine Labor Relations Board -18- ____________________________________________________________________________________