Teamsters Local 48 and Town of Berwick, No. 80-UD-25, aff'd by 80-A-05

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   HEARING EXAMINER
                                                   Case No. 80-UD-25
                                                   [Issued:  April 25, 1980]

    and                      )               UNIT DETERMINATION REPORT
TOWN OF BERWICK              )
     Teamsters Local Union No. 48 (the "Union") filed this petition for unit determ-
ination on February 11, 1980, and an amended petition on February 29, 1980.  A hear-
ing was held after due notice on March 20, 1980, in Augusta, Maine.  Due in part
to the exigencies created by the appearance of the Union representatives at the
appointed time in Berwick rather than Augusta, testimony and argument was taken by
telephone, documents were solicited, and the record was kept open until April 8,
     Participating for the Union were:
               Richard R. Peluso                 International Representative
               Gerry Kennie                      Witness and Clerk/Dispatcher
     Participating for the Town of Berwick was:
               Norbert J. Couture                Town Manager
     The Union seeks a determination that a unit of Full-time Police Officer, Part-
time Police Officer, and Clerk/Dispatcher is an appropriate bargaining unit.  The
Town argues (1) that the part-time officers are not public employees in accordance
with Section 962(6)(G) of the Municipal Public Employees Labor Relations Act (the
"Maine Act") because they are "temporary, seasonal or on-call," 26 M.R.S.A.  962
(6)(G); and (2) that the clerk/dispatcher acts as the confidential secretary to
the Chief of Police and is therefore not a public employee in accordance with
Section 962(6)(C) of the Act because it is a "confidential" position to a depart-
ment head.  Both parties presented testimony regarding these issues and in the
interests of developing a complete record, I requested that certain documents be
submitted after the hearing.  In this regard I relied on Rule 1.09(D) which states
that the proceeding should be primarily "investigatory."
                                  FINDINGS OF FACT

     On the basis of the evidence accumulated during the hearing procedure, and the
documents submitted prior to the closing of the record, I make the following findings:
     1.  The Town Manager is the chief administrative officer.  The Chief of
         Police commands the Police Department and is a "department head"
         per 26 M.R.S.A.  962(6)(C).  There are currently four full-time
         police officers, three part-time police officers, and one clerk/
         dispatcher in the police department under the Chief.
     2.  The full-time officers work 45 or more hours per week, depending
         on the week, staffing levels, and the need for overtime.  The three
         part-time officers, referred to commonly as "reserve" officers,
         worked 4.5, 6.6, and 8.2 hours per week (based on the 13


         week period ending on February 17, 1980, the last record date
         prior to the filing of the amended petition).  The full-time and
         reserve officers perform the same functions, although the reserve
         officers are not on duty alone.  The schedule reflects that the
         Chief and the full-time officers cover every hour of the day, with
         some overlap.  The reserve officers are scheduled to provide an
         extra officer at the times of greater need, Friday and Saturday
         nights, and Saturday during the day.  Thus, a reserve officer is
         regularly scheduled for a four hour shift on Friday and Saturday
         nights and for a nine hour shift during the day on Saturday.  The
         reserve officer schedules are posted on a monthly basis providing
         ample notice.
     3.  The reserve officers are infrequently called in on short notice to
         assist on investigations or shift coverage when the full-time officer
         is called away from normal shift coverage.  But this does occur at
         least once a month.  It is to be noted that the reserve officers do
         not replace a full-time officer on duty but provide only back-up
     4.  The reserve officers each have full-time employment with other employ-
         ers.  If they are unable to cover the shift they have been scheduled
         for, they attempt to swap.  If that fails, however, they are not dis-
         ciplined or replaced by a full-time officer.  Thus, it is clear that
         the reserve officers, while desired, are not considered to be absolutely
         necessary to provide adequate police coverage for the Town.
     5.  The clerk/dispatcher, Gerry Kennie, divides her work approximately one
         half to clerk duties and one half to dispatching.  Kennie's duties
         are adequately described in the job description submitted by the Town.
         One of her functions is to "type all correspondence, . . . reports,
         and any other material designated by the Chief of Police."  This
         "secretarial" portion of the job is a minor aspect of the overall work.
         Indeed, Kennie may actually type only one or two items a week.
     6.  Related functions are the fact that Kennie handles the Chief's incoming
         correspondence (which she does not open if sealed), has a key to the
         Chief's office (as does the senior police officer), and therefore has
         access to the Chief's personnel files.  All the Chief's memos are main-
         tained in an unlocked file.
     7.  The record contains nineteen memoranda from the Police Chief that were
         typed between February 15, 1979, and January 22, 1980, that the Town
         suggests were of a confidential nature.  Many of these have the initial
         "gk" for Gerry Kennie.  Others were typed by her but do not contain her
         initials.  These memoranda were mostly written to the Town Manager and
         concern:  budget item requests for overtime, the purchase of a teletype,
         the purchase of radio units, and an increase in the uniform allowance;
         a budget request for a salary increase for the Chief himself; a budget
         request for a salary increase for Gerry Kennie and the part-time offi-
         cers; a recommendation to change the title of the Senior Patrol Officer
         to Sergeant; a request to increase the hourly rates for the performance
         of special details (paid, for example, by a local high school); the
         suggestion to purchase two new police vehicles; a notice of a two-day
         suspension; a request for a pay raise for an officer who had completed
         a six month probation period; a request for the Chief to receive gas
         expenses for a trip to a police chiefs' meeting; a designation of
         officer-in-charge during the absence of the Chief; a recommendation to
         hire a particular full-time officer from among five applicants; a re-
         quest for pay for officers for traffic work at a Town parade; a cover
         letter to a court summons on a charge of unauthorized taking, addressed
         to a former officer; a report regarding a traffic accident involving an
         on-duty police officer which contained a recommendation of no disci-
         pline; a report regarding an incident wherein an officer, who had been
         drinking, chose to resign rather than be suspended with a recommenda-
         tion of discharge; a personnel file notice of an officer being placed on
         a disciplinary probation for two months; and a personnel file notice of
         two oral reprimands of an officer because of his job performance.


I.  Reserve Officers:
     The first issue is whether the public employee exclusion for those who are
"temporary, seasonal or on-call" applies to the reserve officers.  See, 26 M.R.S.A.
 962(6)(G).  In interpreting this language it is important to note the background
against which it was fashioned.  The National Labor Relations Act ("National Act"),
29 U.S.C.  151 et seq., the obvious model for the Maine Act, has no similar
statutory provision.  However, by the time the Maine Act was passed, the National
Labor Relations Board ("N.L.R.B.") had already established a clear policy exclud-
ing certain types of employees from eligibility in bargaining units such as confi-
dential, temporary, and seasonal employees.  See, e.g., The B. F. Goodrich Co.,
115 NLRB 722 (1956); Davison-Paxon Co., 185 NLRB No. 5, 74 LRRM 1730 (1970).
Thus, the public employee exclusion sections of the Maine Act can be seen as an
attempt to codify the status of existing N.L.R.B. law at the time of its enactment.
See 26 M.R.S.A.  962(6)(C)&(G).
     Codification of the terms "temporary" and "seasonal" has added nothing to the
underlying rationale for these terms.  The genesis of both exclusions was the con-
sistent application of the basic community of interest analysis, and the terms had
become a type of rational short-hand for types of employees who do not share a
community of interest with regular, full-time employees who are covered by the
statute.  The same is true for the term "on-call," even though it does not parrot
a term often used under the National Act.  Rather, a variety of terms have been
used under the National Act, including "call-in" (Mademoiselle Shoppe, Inc., 199
NLRB No. 147, 82 LRRM 1022 (1972)), and "extra" or "contingent" (Davison-Paxon
Co., 185 NLRB No. 5, 74 LRRM 1730 (1970)).  In each case the term used was descrip-
tive of a less-than-full-time employee; and in each case community of interest
notions controlled the outcome.
     In the absence of any noteworthy Maine legislative history, it seems clear
that the object of the exclusion is the same under both Acts:  an attempt to ex-
press in one term, whether it be "on-call," "call-in," "irregular," or "casual,"
the type of employee who works on a less than permanent, full-time basis who
should properly be excluded from any bargaining unit because the employee has an
insufficient community of interest with the permanent full-time employees to be
permitted collective bargaining status.  The trap of permitting terminology to
obscure underlying principles is thus avoided.  In summation, I interpret the
statutory term "on-call" to be an affirmation of the evolving principles as applied
by the N.L.R.B. to the less-than-full-time employee, that is, considerations of
community of interest.
     It is not surprising that the amount of time worked is very significant among
these principles.  Indeed the N.L.R.B. has established a nearly mechanical guide-
line for part-time employees, holding that employees who regularly work four or
more hours per week[fn]1 should be included as regular part-time employees with a

1.  The N.L.R.B. considers, as a matter of policy, the work record for the thirteen
week period immediately preceding the eligibility date for voting.  See, Davison-
Paxon Company, 185 NLRB No. 5, 74 LRRM 1730 (1970).  This appears to be an appro-
priate length of time and should extend back from the filing of the petition for
unit determination.


sufficient community of interest.  See, e.g., Mademoiselle Shoppe, Inc., supra.
This mechanical approach to part-time employees has been rejected by at least
two federal circuit courts, however.  See, N.L.R.B. v. Georgia, Florida, Alabama
Transportation Co., 566 F.2d 520 (5th Cir. 1978); N.L.R.B. v. Greenfield Components
Corp., 317 F.2d 85 (1st Cir. 1963).  The Greenfield Components court held that the
number of hours worked is but one factor - "albeit a highly relevant one - in the
total assessment of whether the individual has that requisite community of interest
with other employees in the permanent unit."  Id. at 89.  I conclude that this is
the proper approach and I would test whether an employee is an "on-call" employee
by viewing the total number of hours worked per week in the last calendar quarter
as a leading factor among the other traditional concepts of community of interest
in order to insure that the employee will have as intense an interest in wages and
conditions as the regular full-time members of the unit.  Therefore, while there
is no easy definition for "on-call," working four or more hours per week will be
a significant factor in the determination.  The reserve officers in this case are
regularly scheduled with a monthly notice for a lengthy shift each week:  two of
the officers for four hours; one for nine hours.  Sometimes they work longer on the
needs of the moment. They are also called-in on short notice on other occasions,
but only rarely.  In sum, they each have averages more than four hours per week in
the last quarter.  See Finding of Fact #2.
     The record reflects little with respect to other terms and conditions of em-
ployment, although it is obvious that there is a close working relationship between
the reserves and the full-time officers since they work together while performing
the same work in the same places.  They both wear police uniforms and have common
     It is true that the Town does not rely on the reserve officers as it does the
full-time officers.  This would obviously justify different treatment of the re-
serves in wages, hours, or working conditions under collective bargaining.  However,
this does not alter the conclusion that the reserve officers are permanent, regular
part-time employees who work a substantial number of hours with the Town and have a
sufficient commonality of interests with the full-time officers that they are not
"temporary, seasonal or on-call" employees and should be included in the bargaining

II.  Clerk/Dispatcher
     With respect to this position, the Town argues that the clerk/dispatcher per-
forms "duties as a . . . secretary [which] necessarily imply a confidential relation-
ship to" the Chief of Police.  26 M.R.S.A.  962(6)(C).  The Maine Labor Relations
Board will exclude as a confidential secretary someone who may handle documents
which could jeopardize the public employer's bargaining position.  Town of Fair-
field and Teamsters Local Union No. 48, Report of Appellate Review of Unit Determ-
ination (Nov. 27, 1978) slip op. at p. 3 [78-A-08].
          "The confidential matters which might create this conflict
           of loyalty are the public employer's confidential collec-
           tive bargaining or employee relations ideas, positions or
           policies which, if disclosed to the bargaining agent, could
           provide the bargaining agent with unfair leverage or advan-
           tage over the public employer."  (Id. at 3.)


     Obviously, all items considered confidential in the broad sense of that
word are not material to a decision under the Act as to whether a public employee
is confidential in the labor relations sense.  In the case of clerk/dispatcher
Kennie, it is clear that secretarial duties are a minor portion of her overall
job duties as "chef, cook and bottlewasher" for the police department.  However,
even if she were a full-time secretary, focus of the analysis would nonetheless
be on the actual information she handles.  See, e.g., Town of Fairfield, supra.
     The crucial issue is the characterization of the documents she has actually
handled or that she would normally handle.[fn]2  In viewing the nineteen documents
(Town Exhibits No. 6 to 25), I conclude that a number of them contain employee
relations ideas, positions, or policies which could properly be kept from a
bargaining agent's knowledge.  Exhibits 13, 20, 23, 24, and 25 each deal with dis-
cipline or recommendations regarding discipline of employees.  Exhibit 17 includes
a recommendation for hiring an individual from among five applicants for full-
time police officer.  And Exhibits 6, 8, 9, 10, 11, 14, and 18 each deal with
recommendations or requests for changes in wages or working conditions for police
department employees.
     I conclude that these documents reflect a continuing involvement during a
period of at least one year of the clerk/dispatcher in employee relations infor-
mation, much of which was or should have been confidential.  Accordingly, the
position is currently a labor relations confidential and is excluded from public
employee status.
     Accordingly, the bargaining unit for the purposes of collective bargaining
shall be:
         All employees in the Police Department, including Full-time
         Police Officers and Part-time Police Officers, excluding the
         Chief of Police and the Clerk/Dispatcher.

Dated at Augusta, Maine, this 25th day of April, 1980.

                                           MAINE LABOR RELATIONS BOARD

                                           Michael C. Ryan, Esq.
                                           Hearing Examiner

2.  There was a disputed claim that the Town Manager directed the Chief of Police
not to utilize Kennie for the typing of confidential items.  The last memorandum
which contains her initials is November 1, 1979.  The chronologically next memo-
randum in the record is dated January 18, 1980.  I do not find it necessary to
decide whether such a directive was given and, if so, whether it was complied with
since I am satisfied that the memoranda were either typed by Kennie or they were
not typed by her out of a concern for maintaining confidentiality.  In either case,
this would not alter the consideration of the normal involvement of the position
in labor relations confidential information.