Council 74 AFSCME and MSEA and University of Maine, No. 77-UD-10, -11

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

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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

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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

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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.

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(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.

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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

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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.

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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.

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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

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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

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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

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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.

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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

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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.

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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.

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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

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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

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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

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