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. [end of page 1] 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. [end of page 2] 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 [end of page 3] 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 [end of page 4] 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 [end of page 5]