Town of Kennebunk and Teamsters, No. 83-A-01, affirming No. 82-UD-33
  STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                       Case No. 83-A-0l
                                                       Issued:  October 4, 1982
   and                  )                 REPORT OF APPELLATE REVIEW OF
                        )                  UNIT DETERMINATION HEARING
  NO. 48                )

       This is an appeal pursuant to 26 M.R.S.A. Section 968(4) by the Town of Kenne-
  bunk (Town) of a unit determination report issued on September 1, 1982 by a Maine
  Labor Relations Board hearing examiner.  The hearing examiner found in his report
  that the Lieutenant and Corporal positions in the Kennebunk Police Department con-
  stitute an appropriate supervisory unit for purposes of collective bargaining with-
  in the meaning of 26 M.R.S.A. Section 966, and accordingly granted the petition for
  unit determination filed by Teamsters Local Union No. 48 (Local 48).  On appeal,
  the Town contends that the hearing examiner committed an error of law by failing
  to consider expressly in his report the supervisory criteria set forth in 26 M.R.
  S.A. Section 966(1).
       A hearing on the appeal was held on September 29, 1982, Alternate Chairman
   Donald W. Webber presiding, with Employer Representative Don R. Ziegenbein and
  Employee Representative Harold S. Noddin.  The Town was represented by Roger S.
  Elliott, Esq., and Local 48 by Walter J. Stilphen.  At the conclusion of the
  hearing the Town filed a legal memorandum, which has been considered by the Board.

       The Town is a public employer as defined in 26 M.R.S.A. Section 962(7).
  Local 48 is a labor organization engaged in the business of organizing and repre-
  senting public employees for purposes of collective bargaining, within the mean-
  ing of the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section
  961, et seq. (Act).  The jurisdiction of the Maine Labor Relations Board to hear
  this case and rule on the Town's appeal lies in 26 M.R.S.A. Section 968(4).

                                FINDINGS OF FACT

       Upon review of the entire record, the Board adopts the following findings
  of fact:
       1.  Employed by the Kennebunk Police Department are a Lieutenant and two
  Corporals, all of whom are public employees who exercise supervisory responsi-
       2.  Although the Lieutenant is, under the provisions of the Kennebunk Police
  Department's Rules and Regulations Duty Manual, the de jure supervisor over the
  Corporals, in fact, however, the Lieutenant and the Corporals perform the same
  work for the Kennebunk Police Department.
       3.  The Lieutenant and the Corporals each serve as a shift supervisor for
  the Kennebunk Police Department and, as such, supervise subordinate officers on
  their shifts, in addition to performing motorized patrol and investigative police
       4.  Although, under the chain-of-command, the Corporals should report to
  and be under the supervision of the Lieutenant, the Corporals and the Lieutenant
  have, in the past, usually all reported to and been under the direct supervision
  of the Kennebunk Chief of Police.
       5.  The labor-relations policy for the Lieutenant and the Corporals is set
  by the Selectmen, the Town Manager, and the Chief of Police of the Town of Kenne-
       6.  The scale and manner of determining the earnings of the Lieutenant and the
  Corporals is similar, except that the Lieutenant is paid Fifty Cents additional
  per hour, over the Corporals' rate of pay, reflecting the Lieutenant's higher rank
  and his greater experience with the Department.
       7.  The Lieutenant and the Corporals have the same employment benefits, i.e.,
  health insurance coverage, holidays, sick leave, vacation, bereavement leave, uni-
  form allowance, and Town-issued firearms.
       8.  The Lieutenant and the Corporals have the same hours of work in that each
  works on eight hour shifts, five days per week, and the shift assignments change
  on a rotating basis.

       9.   The Lieutenant and the Corporals have similar qualifications, skills
  and training in that all have attended the Maine Criminal Justice Academy and
  all compete with each other to attend other law enforcement-related educational
      10.  The Lieutenant and the Corporals see each other, on a daily basis, as
  one relieves the other, in the capacity of shift supervisor.  When the Kennebunk
  Police Department had a full-time Police Chief (the Police Chief's position is
  presently vacant), the Lieutenant and the Corporals met with the Chief once per
  week for a supervisors' meeting.
      11.  All three supervisors, the Lieutenant and the two Corporals, operate
  out of the same police station, all work in a marked police cruiser, and share
  a desk at the Kennebunk Police Department.
      12.  The Lieutenant wishes to be represented by the petitioner Union for col-
  lective bargaining purposes, in the proposed bargaining unit.
      13.  Under the established Kennebunk Police Department grievance procedure,
  the Lieutenant and the Corporals, as shift supervisors, have all processed griev-
  ances, from subordinate employees, as the first step of said procedure.  Although
  permitted by the collective bargaining agreement, between Local 48 and the Town,
  for patrol and communications officers, neither the Lieutenant nor the Corporals
  have ever been delegated the responsibility of replacing the Chief at the Chief's
  step of the grievance procedure, for the subordinate police officers.
      14.  The Lieutenant and the Corporals have all, in the course of their super-
  visory duties, recommended that discipline be taken against subordinate police
  officers.  The final decision, concerning discipline, is not made by either the
  Lieutenant or the Corporals.
      15.  The administrative duties in the Kennebunk Police Department are shared
  equally by the Lieutenant and each Corporal.  For example, each has made the shift
  assignments for all officers, on a rotating basis.
      16.  Subsequent to issuance of the hearing examiner's report, the Executive
  Director's designee scheduled a representative election for the Lieutenant and
  Corporals on September 22, 1982.  On September 16th the Town moved to stay the
  representation election pending adjudication of the Town's appeal of the hearing
  examiner's report.  The Board denied the motion on September 17th, providing that

  the election would proceed as scheduled but that all ballots cast would be se-
  questered until such time as the Board had ruled on the Town's appeal.  The se-
  questered ballots currently are in the possession of the Executive Director.
      The hearing examiner examined in his report the criteria traditionally con-
  sidered in making community of interest determinations, and concluded that the
  Lieutenant and Corporals share a clear and identifiable community of interest.
  The Town has no quarrel with this determination or with any of the findings of
  fact made by the hearing examiner.  Rather, the Town urges that the hearing
  examiner did not adequately consider the issue whether the Lieutenant should be
  placed in a separate bargaining unit by himself because he allegedly exercises
  supervisory responsibility over the Corporals.  According to the Town, such con-
  sideration would have required the hearing examiner to consider expressly the
  supervisory criteria set forth in Section 966(1) of the Act.
      We dismiss the Town's appeal because the hearing examiner expressly
  found that the Lieutenant does not in fact act as the Corporals' supervisor,
  a finding which made any further consideration of the supervisory issue wholly
  irrelevant.  In paragraph nos. 4, 5, and 6 of his findings of fact the hearing
  examiner found that although the Police Department's Duty Manual makes the Lieu-
  tenant the de jure supervisor of the Corporals, in practice the Lieutenant does
  not supervise the Corporals but rather all three employees report to and are
  under the direct supervision of the Chief of Police.  The hearing examiner also
  found that each of the three employees serves as a shift supervisor, supervising
  the subordinate officers on their shifts, and that the three employees perform
  essentially the same job.  None of these findings are contested by the Town.
  In short, despite what the Duty Manual might say, the hearing examiner properly
  refused to elevate form over substance and correctly looked to the duties and
  responsibilities in fact performed by the employees, as shown by the testimony
  and exhibits presented to him.  See, e.g., AFSCME, Pine Tree Council No. 74 and
  City of Brewer at 4 (Feb. 1, 1979), affirmed, Case No. 79-A-01 (Oct. 17, 1979)
  ("It is the actual duties performed . . . that are crucial").  We conclude that
  since the hearing examiner found that the Lieutenant is not the Corporals' super-
  visor, there obviously was no reason for him to consider whether the Lieutenant

  should be placed in a separate bargaining unit due to the supervisory criteria
  set forth in Section 966(1).  The Town's claim of error therefore is meritless.
       We also note that the Town miscomprehends the purpose of the supervisory
  criteria contained in Section 966(1).  These criteria are set forth in order
  to facilitate the formation of bargaining units composed entirely of super-
  visory personnel.  The fact that some employees included in such a unit may
  supervise other employees also included in the unit is irrelevant; the point
  of the Section 966(1) criteria is to include all supervisors in the same unit,
  irrespective of whom these employees may supervise.[fn]1  Thus, even if the Lieuten-
  ant did supervise the Corporals, the only rational result would be to include
  all three supervisory positions in the same unit; it would be contrary to the
  intent of the Act and to our policy of "discouraging the proliferation of small
  bargaining units in a single department"[fn]2 to create two separate supervisory
  bargaining units in the Kennebunk Police Department.
       In sum, we conclude that the hearing examiner committed no error by including
  the Lieutenant and the Corporals in the same bargaining unit.  We accordingly
  will affirm the hearing examiner's report and deny the Town's appeal.  We will also
  order that the Executive Director or his designee open and count the sequestered
  ballots and certify the results of the September 22, 1982 representation election
  within seven (7) working days of the date of this decision.  The Executive Direc-
  tor or his designee shall give advance notice to the parties of the time, date and
  place at which he will open and count the ballots, so that the parties may have
  their election observers present at the opening of the ballots if they so choose.
  1/  We specifically reject any suggestion to the contrary which might be read into
       the hearing examiner's report in Command Officers, South Portland Police De-
       partment and City of South Portland (Dec. 21, 1972), a report on which the
       Town relies in the present case.
   2/ Town of Yarmouth and Teamsters Local 48, Case No. 80-A-04 at 4 (June 16, 1980).
      We note that hearing examiners occasionally include supervisory positions in
      rank-and-file bargaining units when only one or two supervisory positions are
      at issue and when formation of a supervisory bargaining unit would unduly
      fragment the department.  See, e.g., Calais Education Association and Alexan-
      der School Committee (Feb. 4, 1982). Such an exercise of a hearing examiner's
      informed discretion is entirely consistent with the requirements of Section
      966(1) and with our policy of avoiding fragmentation of bargaining units.

       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. Section 968(4), it is ORDERED:

       1.  The September 1, 1982 unit determination report in this matter
           is affirmed. The Police Supervisors bargaining unit at the
           Kennebunk Police Department is composed of the Lieutenant and
           Corporal job classifications.
       2.  The Town's appeal is denied.
       3.  The Executive Director or his designee shall open and count the
           sequestered ballots and certify the results of the September 22,
           1982 representation election within seven (7) working days of
           the date of this Order.  The Executive Director or his designee
           shall give advance notice to the parties of the time, date and
           place at which he will open and count the ballots.
  Dated at Augusta, Maine, this 4th day of October, 1982.
                                       MAINE LABOR RELATIONS BOARD

                                       Donald W. Webber, Alternate Chairman

                                       Don R. Ziegenbein, Employer Representative

                                       Harold S. Noddin, Employee Representative