STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 82-UD-17
Issued: January 18, 1982

COUNCIL #74, AMERICAN FEDERATION OF STATE, COUNTY AND MUNICIPAL EMPLOYEES, AFL-CIO
Petitioner,

and

COUNTY OF KNOX,
Public Employer.

 

UNIT DETERMINATION REPORT

 

	  This is a unit determination proceeding, initiated on October 5, 1981 when
Council #74, American Federation of State, County and Municipal Employees, AFL-CIO
("Council 74") filed a petition for appropriate bargaining unit determination pur-
suant to 26 M.R.S.A.   966.  A pre-unit determination hearing conference was held
at the County Commissioners' Room of the Knox County Courthouse, Rockland, Maine,
on December 17, 1981.  At said conference, the parties reached partial agreement
on the composition of the proposed bargaining unit.  The only issues reserved to
be heard and decided at the unit determination hearing were as follows:

     1.  Should the Matrons, employed by the Knox County Sheriff's
         Department, be included in the Knox County Deputies' Asso-
         ciation Bargaining Unit?

     2.  Should the Jail Administrator and the Patrol Supervisor be:

         a.  Included in the above-named bargaining unit; or
         b.  Included in a separate supervisory employees'
              bargaining unit; or
         c.  Excluded from collective bargaining, on the grounds
              that one or both of said positions are "confidential
              employees."

     By agreement of the parties, the unit determination hearing was held by the
undersigned hearing examiner, on the same date and at the same site as noted above.
Council 74 was represented by Walter D. Breen, Field Representative, and the County
of Knox was represented by Jeffery M. Carpenter, County Commissioner.  Commission
Chairman Merrill W. Payson and Commissioner Arthur M. Sprowl were also present on
behalf of Knox County.

     Council 74 seeks to include the Matrons, the Jail Administrator, and the
Patrol Supervisor into the Knox County Deputies' Association Bargaining Unit.

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The County opposes including the Jail Administrator and the Patrol Supervisor in
the proposed unit on the grounds that these employees are:  (1) confidential
employees within the meaning of 26 M.R.S.A.   962(6)(C) or (2) supervisory em-
ployees who should be in a separate supervisors' unit.  Furthermore, the County
opposes the inclusion of the Matrons in the prospective unit on the grounds that
they are temporary or on-call employees, as defined in 26 M.R.S.A.   962(6)(G).

     Council 74 presented Patrol Supervisor Ricky W. Brewster and Matron Ercell
S. Robishaw as witnesses.  Deputy Sheriff Albert Hutchinson assisted Field Repre-
sentatiave Breen in the portion of Council 74's argument concerning the Matrons.
Testifying on behalf of the County were Sheriff George J. Massie and Chief Deputy
Sheriff Stephen K. Mazzeo.  The following documents were offered and admitted into
evidence:

     Employer's Exhibit #1       Job Description:  Patrol Supervisor
     Employer's Exhibit #2       Policy Statement  Re:  Unit Determination
     Employer's Exhibit #3       Job Description:  Jail Administrator (Chief
                                                   Correctional Officer)
     Employer's Exhibit #4       County of Knox Personnel Policies

The parties were given full opportunity to examine and cross-examiner witnesses,
present documentary evidence, and to make argument.


                                JURISDICTION

     Council 74 is a labor organization engaged in the business of organizing and
representing public employees for purposes of collective bargaining within the
scope of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A.
  962(7).  The jurisdiction of the hearing examiner to hear this matter and make
an appropriate unit determination lies in 26 M.R.S.A.   966(1).

                               FINDINGS OF FACT

     Upon review of the entire record, the hearing examiner finds:

     1.  The Patrol Supervisor performs many of the same job functions as
         do the other Patrol Deputies, i.e.: patrolling, making arrests,
         and assisting in the event of jail disturbances.

     2.  Some of the functions performed by the Patrol Supervisor are
         characterized by performing the management control duties of
         scheduling, assigning, overseeing, and reviewing the work of
         subordinate employees.

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     3.  Although there have been no formal grievances, the Patrol
         Supervisor has adjusted informal grievances, mostly in
         resolving scheduling problems.

     4.  The Patrol Supervisor has participated in the implementation of
         the employer's performance standards for subordinate employees
         by evaluating said employees in August, 1981.  The supervisor
         had no imput, however, in the formulation of said performance
         standards.

     5.  The Jail Administrator, a position which has never been filled,
         will perform functions analogous to those of the Patrol Super-
         visor, however, said functions will be exclusively dealing with
         the operation of the Knox County Jail.

     6.  The Matrons, employed by the Knox County Sheriff's Department,
         receive the same oath of office as do the other Deputy Sheriffs.
         Said Matrons are not issued uniforms, badges, or guns nor do they 
         receive any of the fringe benefits enjoyed by the other employees.

     7.  The Matrons only work when a female criminal defendant is arrested
         or when a woman prisoner is sentenced to a term of incarceration in
         the County Jail.

     8.  In the case of an arrest, mentioned in paragraph 7 hereof, the
         Matrons are called to duty on a rotating call basis.

     9.  When a woman is incarcerated in the County Jail, the Matrons are
         placed on the regular schedule, for Corrections Officers, and
         serve regular work shifts until said female inmate is released.

    10.  The Matrons have not received any training from the Maine Criminal 
         Justice Academy and do not possess arrest powers.


                                   DECISION

I.  THE PATROL SUPERVISOR AND THE JAIL ADMINISTRATOR.

     The County argues in the alternative, relative to the Patrol Supervisor and
the Jail Administrator, that either (1) said positions are "confidential" and
should be excluded from collective bargaining or (2) said job classifications 
describe supervisory employees who should be placed in a separate bargaining 
unit.  A finding of "confidentiality," under Section 962(6)(C) of the Act, re-
rults in an exclusion from collective bargaining.  In accord with the broad
legislative mandate of 26 M.R.S.A. Section 961, the Maine Labor Relations Board has
narrowly defined the parameters of the "confidential" exclusion.  In Waterville

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Police Department and Teamsters Local 48, Report of Appellate Review of Unit
Determination Hearing, at page 3 (10/4/78), the Board stated:

     "[T]he test for determining whether an employee is a 'confidential
     employee' is whether the employee 'is permanently assigned to col-
     lective bargaining functions, employee relations matters or renders
     advice on a regularly assigned basis to management personnel regard-
     ing either collective bargaining or employee relations matters.'
     To show that an employee's duties imply a confidential 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 formulation, determination and effectuation of
     the employer's employee relations policies, . . .   Absent such a 
     meaning of Section 962(6)(C) even though the employee may perform
     supervisory duties."  [Citations omitted].  

The evidence presented fails to reveal that either the Patrol Supervisor or the 
Jail Administrator are permanently assigned to collective bargaining functions on
behalf of the publc employer.  Both positions do perform an annual performance
evaluation of subordinate employees, however, the Patrol Supervisor had no part in
the formulation or in the determination of the evaluation criteria and procedure.
Neither the Patrol Supervisor nor the Jail Administrator is, therefore, a "confi-
dential employee" within the meaning of the Act.

     As reported in paragraphs 2 through 5 of the above findings of fact, it has
been established that the Patrol Supervisor and the Jail Administrator are super-
visors within the meaning of 26 M.R.S.A.   966(1).  A review of said findings
militates for the exclusion of said positions from the proposed bargaining unit.
The County's argument, that the characteristic functions of said positions as
supervisors mandate their placement in a separate bargaining unit, is persuasive.
The possible conflict of loyalties, between fellow bargaining unit members and the
public employer; especially in the performance evaluation process and in making
recommendations on personnel decisions, is patent.  The hearing examiner concludes 
that the Patrol Supervisor and the Jail Administrator should be placed in a separ-
ate supervisors' bargaining unit.

II.  MATRONS

     The Matrons serve in the same capacity as do the Corrections Officers during
times when a woman is either (1) arrested and detained at the jail pending bail


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or (2) sentenced to serve a term of incarceration in said facility.  In the former
situation, Matrons are called into work from a rotation duty list maintained at the
jail.  When a female prisoner is sentenced, the Matrons are scheduled to work un-
til said inmate is released.  In this latter case, the scheduling is on a temporary
basis.

     The Matrons' work duties are contingent upon events, the arrest or incarcera-
tion of women, which are essentially beyond the control of the employer.  Their
work time is sporadic and intermitttent.  The Maine Labor Relations Board has held
that "[t]he point of the 'temporary, seasonal, or on-call' exclusion is to exclude
those employees who, because they work irregularly or sporadically, do not have a
community of interest with the permanent, full-time employees in the unit."
Town of Berwick and Teamsters Local Union No. 48, M.L.R.B. No. 80-A-05, at page 3
(7/24/80).  The above system is, in the opinion of the hearing examiner, clearly
an on-call system.  The Matrons, as "on-call employees" must, under the terms of
Section 962(6)(G) of the Act, be excluded from the proposed bargaining unit.


                                     ORDER

     On the basis of the foregoing findings of fact and decision, and by virtue of
and pursuant to the powers granted in 26 M.R.S.A.   966(1), it is ORDERED:

     1.  That both the Patrol Supervisor and the Jail Administrator, in
         the employ of the Knox County Sheriff's Department, be excluded
         from the Knox County Deputies' Association Bargaining Unit and
         be and hereby are included in the Knox County Sheriff's Depart-
         ment Supervisor' Bargaining Unit which unit is constituted hereby.

     2.  That the Matrons of the Knox County Sheriff's Department be ex-
         cluded from the Knox County Deputies' Association Bargaining Unit,
         on the grounds that said individuals are not public employees pur-
         suant to 26 M.R.S.A.   962(6)(G).


Dated at Augusta, Maine, this 18th day of January, 1982.


                                          MAINE LABOR RELATIONS BOARD




                                          /s/_________________________
                                          Marc P. Ayotte
                                          Hearings Examiner


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