Waterville Police and Teamsters Local 48, No. 78-A-06, affirming No. 78-UD-25 STATE OF MAINE MAINE LABOR RELATIONS BOARD MLRB No. 78-A-06 [Issued: October 4, 1978] ______________________________ ) WATERVILLE POLICE DEPARTMENT ) ) and ) ) REPORT OF APPELLATE REVIEW OF TEAMSTERS LOCAL UNION NO. 48, ) UNIT DETERMINATION HEARING STATE, COUNTY, MUNICIPAL AND ) UNIVERSITY EMPLOYEES ) ______________________________) This case originally came to the Maine Labor Relations Board ("Board") by way of a Petition for Appropriate Unit Determination filed February 23, 1978 by Robert L. Maier, Assistant to the International Trustee, Teamsters Local Union No. 48. By its Petition, Teamsters Local Union No. 48 ("Local No. 48") sought formation of a proposed bargaining unit composed of the Captain of the Detective Division, Sergeant, Detective, Narcotics Officer and Youth Services Officer positions in the Waterville Police Department. On May 15, 1978, a hearing examiner for the Board conducted a unit determina- tion hearing on the matter, pursuant to 26 M.R.S.A. 966. A Unit Determination Report was issued by the hearing examiner on May 26, 1978. In the Report, the hear- ing examiner found that the positions of Captain of the Detective Division, Sergeant, and Youth Services Officer were appropriate for inclusion in the proposed supervisory officers' bargaining unit. Counsel for the Waterville Police Department on June 12, 1978 filed with the Board pursuant to 26 M.R.S.A. 968(4) a notice of appeal of the May 26, 1978 Unit Determination Report. The appeal was heard by the Board on August 22, 1978 in Augusta, Maine, Chairman Edward H. Keith presiding, with Paul D. Emery, Employer Representative and Michael Schoonjans, Employee Representative. Present at the hearing for the Watervilie Police Department were: James E. Millett, Esquire City Solicitor, City of Waterville Robert W. Palmer, Jr. Witness and City Administrator, City of Waterville Present for Local No. 48 were: Jonathan G. Axelrod, Esquire Attorney for Local No. 48 Robert L. Maier Assistant to the International Trustee, Local No. 48 Bernadette Bonenfant Secretary, Local No. 48 Raymond Rancourt Witness and Captain of the Detective Division, Waterville Police Department Edmund E. Saucier Witness and Youth Services Officer, Waterville Police Department [-1-] ____________________________________________________________________________________ Neither party challenged the jurisdiction of the Board to hear this appeal, and the appeal proceeded with no procedural issues being raised by the parties. The position of Appellant Waterville Police Department was that the Captain of the Detective Division and the Youth Services Officer positions are not appropriate for inclusion in the proposed bargaining unit because the duties associated with both positions necessarily imply a confidential relationship to an executive head or division head within the meaning of 26 M.R.S.A. 962(6)(C). Appellee Local No. 48 contended that the duties performed by the Captain of the Detective Divi- sion and the Youth Services Officer do not imply a confidential relationship with the City Administrator or with the Chief of Police. Section 962(6)(C) of the Muni- cipal Public Employees Labor Relations Act ("Act") provides that the term "public employee" means any employee of a public employer except any person whose duties as a deputy, administrative assistant or secretary necessarily imply a confidential relationship to the executive head, body, department head or division head. Section 966(1) of the Act provides in pertinent part that anyone excepted from the definition of public employee under Section 962 may not be included in a bargaining unit. After reviewing the record developed at the August 22, 1978 hearing and the May 26, 1978 Unit Determination Report, the Board finds that: 1. A Petition for Appropriate Unit Determination was filed with the Board on February 23, 1978 by Robert L. Maier. A hearing on the Petition was held on May 15, 1978. 2. The job categories under consideration at that hearing were Cap- tain of the Detective Division, Sergeant, Detective, Narcotics Officer and Youth Services Officer in the Waterville Police Depart- ment. 3. The Unit Determination Report in this matter was issued on May 26, 1978. 4. Counsel for the Waterville Police Department filed an appeal of the May 26, 1978 Unit Determination Report on June 12, 1978. 5. The Captain of the Detective Division employed by the Waterville Police Department is responsible for the independent operation of the Detective Division of the Police Department and for the Investigation of criminal offenses and related police problems on a full-time basis. Exnnples of the duties performed by the Captain of the Detective Divi- sion, who is third in command of the Police Department, include ascer- taining information and securing evidence for the arrest of persons alleged to have committed a crime; making specialized vice investiga- tions and raids; appearing in court to present evidence and testify; investigating complaints of bad checks; maintaining surveillance over suspected criminals; and preparing written reports of investigations. 6. The Youth Services Officer employed by the Waterville Police Depart- ment is responsible for coordinating the functions of the Youth Services Division, developing programs to aid in meeting the needs of youth offenders, and supervising subordinate officers assigned to the Youth Services Division. Examples of the duties performed by the Youth Services Officer include planning, developing and supervising the activities of the Division; conducting preliminary investigations when a youth becomes involved in the court system; working with private and public agencies to coordinate recreational activities; and maintaining records and preparing reports. -2 ____________________________________________________________________________________ Appellant contends on appeal that the Captain of the Detective Division is a confidential employee because the Captain is responsible for conducting internal Police Department investigations and because the Captain will in the future parti- cipate in collective bargaining matters on behalf of the City of Waterville. Appellant contends that the Youth Services officer is a confidential employee because the City relies upon the Officer for input concerning the Youth Services Division employees, because the Officer evaluates and implements City policies and because the Officer will in the future be involved in collective bargaining matters on behalf of the City. After carefully considering the evidence, we are of the opinion, for the reasons discussed below, that the duties now performed by neither the Captain of the Detective Division nor the Youth Services Officer necessarily imply a confidential relation- ship with an executive or department head within the meaning of Section 962(6)(C) of the Act. We consequently will affirm the May 26, 1978 Unit Determination Report and will deny Appellant's appeal. Appellant has presented evidence which establishes that the Captain of the Detective Division and the Youth Services Officer positions both entail responsible, supervisory duties. However, the fact that the public employer may rely heavily upon an employee holding a particular position to perform important, supervisory functions is not conclusive in establishing that the employee is a "confidential employee" under Section 962(6)(C). There are many public employees in bargaining units throughout the State of Maine who hold responsible, supervisory positions with a public employer. Section 966(1) of the Act clearly permits supervisory personnel to form bargaining units, although supervisory employees may be excluded from bargaining units containing non-supervisory personnel. In our Decision of Appellate Proceedings [No. 77-A-02], Council No. 74, AFSCME, et al., (1977), we stated that the test for determining whether an employee is a "confiden- tial employee" is whether the employee "is permanently assigned to collective bar- gaining functions, employee relations matters or renders advice on a regularly assigned basis to management personnel regarding either collective bargaining or employee relatIons matters." To show that an employee's duties imply a confiden- tial relationship under Section 962(6) (C), then, it is necessary to show that the employee is permanently involved in collective bargaining matters on behalf of the public employer or that the duties performed by the employee involve the formula- tion, determination and effectuation of the employer's employee relations policies, see, e.g. Unit Determination Report [No. 78-UD-04], Employees of the Kittery Police Department and Town of Kittery (1977); Unit Determination Report [No. 78-UD-34], Teamsters Local Union No. 48 and City of Biddeford (1978). Absent such a showing, an employee will not be a "confi- dential employee" within the meaning of Section 962(6) (C) even though the employee may perform supervisory duties. In the present case, the evidence does not show that the duties performed by the Captain of the Detective Division or by the Youth Services Officer permanently involve collective bargaining functions or employee relations matters. It is clear that the Captain of the Detective Division has not been involved in collective bar- gaining matters. The City Administrator, who is a member of the City's negotiating -3- ____________________________________________________________________________________ team, testified that he has never conferred with the Captain of the Detective Division regarding the City's bargaining positions, while the Captain of the Detective Division testified that he has never participated in negotiations on behalf of the City and has never been consulted by City officials about negotia- tions. The Captain of the Detective Division's duties also do not involve employee relations matters. The Captain of the Detective Division testified that he spends approximately 99% of his time on duty performing field work, and stated that he has never performed such duties as maintaining personnel records, recommending specific dollar amounts of salary for the subordinate officers in his Division, or investi- gating a grievance. The job description for the Captain of the Detective Division position, admitted as Appellant's Exhibit No. 1, does not indicate that the employee holding the position serves as a personnel officer, or otherwise suggest that the position entails employee relations duties. The City Administrator's testimony that since the subordinate officers in the Detective Division have recently been included in a bargaining unit, the Captain of the Detective Division will participate in future negotiations on behalf of the City, does not establish that the Captain is a confidential employee within the mean- ing of Section 962(7). In determining confidential employee status, we consider the duties currently being performed by the alleged confidential employee. We cannot base a finding of confidentiality upon testimony which projects what an employee's duties may be in the future. In the event that a public employee's duties change so as to imply a confidential relationship under Section 962(7), the correct pro- cedure is for the public employer to file a Petition for Unit Clarification pursuant to 26 M.R.S.A. 966(3) and in accordance with Rule 1.13 of the Board's Rules and Procedures. At the unit clarification hearing, the employer is afforded the oppor- tunity to show that the employee's changed duties involve collective bargaining functions or employee relations matters. We also are not persuaded by Appellant's testimony that the Captain of the Detective Division is a confidential employee because he is responsible for con- ducting internal Police Department investigations. There is no evidence that such investigations involve collective bargaining or employee relations matters. Paren- thetically, we note that the "confidentiality" surrounding an internal investigation does not adhere only to the Captain of the Detective Division, as the subordinate officers in the Detective Division are always aware of and sometimes participate in any internal investigation conducted by the Captain, unless one of these subordinate officers is the subject of the investigation. The evidence also does not show that the Youth Services Officer is involved in collective bargaining functions or employee relations matters. The Youth Services Officer testified that he has not been called upon in the past to participate in negotiations for the City. The City's job description for the Youth Services Offi- cer position does not indicate that the Youth Services Officer performs employee relations duties. While it is clear that the Youth Services Officer exercises responsible, supervisory authority within the Department, we have noted, supra, that such authority does not establish the confidential status of an employee under -4- ____________________________________________________________________________________ Section 962(7), in the absence of a showing of involvement in labor relations matters. Similarly, our discussion above concerning duties which an employee may perform in the future is equally applicable to Appellant's testimony that the Youth Services Officer will be involved in future negotiations. In sum, a public employer must have delegated functions and responsibilities regarding labor relations matters to its employees in order to show that the duties performed by the employees necessarily imply a confidential relationship within the meaning of 26 M.R.S.A. 962(7). Having found that the evidence does not support Appellant's contentions that the Captain of the Detective Division and the Youth Services Officer employed by the Waterville Police Department are "confidential employees" under Section 962(7), we must affirm the May 23, 1978 Unit Determination Report. The appeal entered by counsel for the Waterville Police Department on June 12, 1978 is hereby DENIED, and the Executive Director of the Board is directed to proceed with a secret ballot election as specified in 26 M.R.S.A. 967(2) and Rule 3.01, et seq. of the Board's Rules and Procedures for the Waterville Police Department supervisory officers' unit. Nothing in this Report is intended to prejudice the right of the Waterville Police Department to petition this Board for clarification of the supervisory officers' unit should the duties performed by any of the employees in that unit change so as to imply a confidential relationship with an executive or department head. Dated at Augusta, Maine this 4th day of October, 1978. MAINE LABOR RELATIONS BOARD /s/_________________________ Edward H. Keith, Chairman /s/_________________________ Paul D. Emery, Employer Representative /s/_________________________ Michael Schoonjans, Employee Representative -5- ____________________________________________________________________________________