Town of Berwick and Teamsters Local 48, No. 80-A-05, affirming No. 80-UD-25

STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                                Case No. 80-A-05
                                                         [Issued:  July 24, 1980]

TOWN OF BERWICK               )
   and                        )             REPORT OF APPELLATE REVIEW OF
                              )              UNIT DETERMINATION HEARING

     This case arose out of petitions for unit determination and election filed
with the Maine Labor Relations Board (Board) on February 11 and 29, 1980 by
Teamsters Local 48 (Local 48).  Local 48 sought by its petitions formation of a
bargaining unit composed of the Full-time Police Officers, Part-time Police Officers
and Clerk/Dispatcher employed by the Town of Berwick's Police Department (Town).
     A unit determination hearing was held on the petitions pursuant to 26 M.R.S.A.
 966 on March 20, 1980, hearing examiner Michael C. Ryan presiding.  The Town
contended that the Part-time Officers and the Clerk/Dispatcher should not be in-
cluded in the proposed unit because these employees were excluded from the defini-
tion of "public employee" set forth in 26 M.R.S.A.  962(6).  Local 48 contended
that the employees in question were "public employees" and that all the employees
shared sufficient community of interest to warrant their inclusion in a single
bargaining unit.
     The hearing examiner issued his unit determination report on April 25, 1980,
concluding that the Part-time Officers were public employees within the meaning
of Section 962(6), but that the Clerk/Dispatcher was excluded from the definition
of public employee by Section 962(6)(C).  The hearing examiner accordingly directed
that the bargaining unit consists of all employees in the Police Department, in-
cluding Full-time Police Officers and Part-time Police Officers, and excluding the
Chief of Police and the Clerk/Dispatcher.  Pursuant to 26 M.R.S.A.  968(4), the
Town and Local 48 on May 12, 1980 both filed timely appeals of the hearing examin-
er's determinations.
     A hearing on the appeals was held on July 2, 1980, Chairman Edward H. Keith
presiding, with Employer Representative Don R. Ziegenbein and Employee Representa-
tive Wallace J. Legge.  The Town was represented by Robert Curley, and Local 48
by Walter Stilphen.  Local 48 withdrew its appeal during the hearing, and the
hearing proceeded on the basis of the Town's appeal.  The parties made oral argu-
ment at the conclusion of the hearing.

     The jurisdiction of the Maine Labor Relations Board to hear this appeal and
render a decision and order lies in 26 M.R.S.A.  968(4).

                                  FINDINGS OF FACT
     Upon review of the entire record, the Board adopts as modified the following
findings of fact made by the hearing examiner:
     1.  The Town is a "public employer" as defined in 26 M.R.S.A.
          962(7), and is an "aggrieved party" within the meaning
         of 26 M.R.S.A.  968(4).  Local 48 is a public employee
         labor organization.
     2.  The Town Manager is the chief administrative officer of the
         Town.  The Chief of Police commands the Police Department
         and is a "department head" as defined in 26 M.R.S.A.  962(6)
         (D).  There were four Full-time Officers and three Part-time
         Officers employed by the Department at the time of the unit hear-
     3.  The Full-time Officers work 45 or more hours per week, depend-
         ing on the week, staffing levels, and the need for overtime.
         The Part-time Officers, commonly referred to as "reserve"
         officers, worked an average of 4.5, 6.6 and 8.2 hours per week
         over the 13 week period ending February 17, 1980, the last
         record date prior to the filing of Local 48's February 29, 1980
         petitions.  The Part-time Officers normally work between 4 and
         6 hours per week; the Officer who averages 8.2 hours over the
         thirteen week period worked some additional hours due to vacan-
         cies in the Full-time Officer positions.
     4.  The Part-time Officers work on Friday and Saturday nights and some-
         times during the day on Saturday, the times when there is a need
         for additional police coverage.  They work year-round and 
         are regularly scheduled for their shifts by the Chief of Police,
         who posts the schedule by the month.  The Chief or a Full-
         time Officer is scheduled to be on duty every hour of every
         day, with some overlap in the schedules.  The Part-time Officers
         thus do not serve on-duty alone except in emergencies.
     5.  The Part-time officers are uniformed police officers who carry weapons
         and who perform the job duties performed by the Full-time Officers.
         The Full-time Officers are paid a salary ranging from $185.00 to
         $225.00 per week, while the Part-time Officers receive $3.25 an hour.
         All the officers are supervised by the Chief, receive professional
         liability insurance, and are covered by social security and workman's
         compensation systems.  Unlike the Full-time Officers, the Part-time
         Officers are not covered by the Maine State Retirement system and do
         not receive health and hospital insurance.  The Town imposes a residency
         requirement for the Full-time Officers which does not apply to the
         Part-time Officers.  Two of the Part-time Officers have received police
         training at a regional Maine Criminal Justice Academy training course.
     6.  The Part-time Officers are all employed full-time by employers other
         than the Town.  They are called in on short notice at least once a
         month to assist with investigations or shift coverage.  If a Part-
         time Officer is unable to cover his scheduled shift, he attempts to
         swap shifts with another Part-time Officer.  If that fails, the Part-
         time Officer is not disciplined for failing to appear for his shift,
         and he is not replaced by a Full-time Officer.  The Town thus does
         not consider the Part-time Officers to be absolutely necessary to
         provide adequate police coverage.
     The Town contends that the hearing examiner should have excluded the Part-
time Officers from the bargaining unit because these Officers are "temporary,
seasonal or on-call" employees within the meaning of 26 M.R.S.A.  962(6)(G).
Local 48 argues that the Officers were properly included because they work year-
round and are regularly scheduled.  We find that the Part-time Officers are public
employees and that the hearing examiner properly included them in the bargaining
unit with the Full-time Officers.


     As the hearing examiner correctly noted, Section 962(6)(G) is a codification
of National Labor Relations Board (NLRB) case law.  See, e.g., Davison-Paxon Co.,
185 NLRB 21, 23-24 (1970).  The point of the "temporary, seasonal, or on-call"
exclusion is to exclude those employees who, because they work irregularly or
sporatically, do not have a community of interest with the permanent, full-time
employees in the unit.  Thus, as the hearing examiner held, traditional community
of interest considerations control the determination whether an employee is a
temporary, seasonal or on-call employee.  See, e.g., NLRB v. Georgia, Florida, Ala-
bama Transportation Co., 566 F.2d 520, 522 (5th Cir. 1978); NLRB v. Greenfield
Components Corp., 317 F.2d 85, 89 (1st Cir. 1963).
     The hearing examiner committed no error in ruling that the Part-time and Full-
time Officers share sufficient coninunity of interest.  While the Part-time Officers
work far fewer hours per week than do the Full-time Officers, the Part-time Officers
work year-round on regularly scheduled shifts.  The Part-time Officers are trained,
uniformed officers who work closely with and perform the same duties as the Full-
time Officers, share the same supervision by the Chief and the same working condi-
tions, are on the regular payroll of the Town, and receive some of the fringe
benefits received by the Full-time Officers.  All of these community of interest
factors were properly relied on by the hearing examiner in finding that sufficient
comunity of interest exists.  See, e.g., C.& H. Foods, Inc., 100 NLRB 1483, 1485
     In sum, we affirm the hearing examiner's conclusion that the Part-time Officers
are permanent, regular part-time public employees who share a clear and identifiable
community of interest with the Full-time Officers.  We will deny the Town's appeal
and direct that the Executive Director conduct a representation election for the
bargaining unit as soon as practical.

     On the basis of the foregoing findings of fact and decision and by virtue of
and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A.
 968(4), it is ORDERED:
     1.  The April 25, 1980 Unit Determination Report in this case is
         affirmed.  The Berwick Police Department bargaining unit consists
         of all employees in the Police Department, including Full-time
         Police Officers and Part-time Police Officers, and excluding the
         Chief of Police and the Clerk/Dispatcher.
     2.  The Town's appeal is denied.
     3.  The Executive Director is directed to conduct a representation
         election for the Berwick Police Department bargaining unit as soon
         as practical.

Dated at Augusta, Maine, this 24th day of July, 1980.     
                                           MAINE LABOR RELATIONS BOARD                

                                           Edward H. Keith

                                           Don R. Ziegenbein 
                                           Employer Representative
                                           Wallace J. Legge
                                           Employee Representative