Teamsters and Town of Kittery, No. 83-UD-04, Affirmed 83-A-02

 STATE OF MAINE                                      MAINE LABOR RELATIONS BOARD
                                                     [No. 83-UD-04]

    and                       )                UNIT DETERMINATION REPORT
 TOWN OF KITTERY              )
      This is a unit determination proceeding, initiated on September 22, 1982
 when Teamsters Local Union No. 48 (Local 48) filed a petition for unit determina-
 tion pursuant to 26 M.R.S.A. Section 966 and a petition for election pursuant
 to 26 M.R.S.A. Section 967(2).  A hearing on the petitions was held by the under-
 signed hearing examiner on October 21, 1982 in Augusta, Maine.  Local 48 was repre-
 sented by Secretary/Treasurer Walter J. Stilphen, Jr., and the Town of Kittery
 (Town) by Duncan A. McEachern, Esq.
      Local 48 seeks by its petitions formation of a supervisory bargaining unit
 composed of the Sergeants employed by the Kittery Police Department.  The Town
 has no objection to the formation of a bargaining unit of Sergeants but urges
 that, because Local 48 already represents the Police Department Dispatchers and
 Patrolmen, an inherent conflict of interest would arise if Local 48 was permitted
 to represent the supervisory personnel.  Thus, while the Town has no objection to
 some union other than Local 48 representing the Sergeants, it contends that the
 hearing examiner should rule that Local 48 cannot represent the Sergeants because
 of the potential for conflicts of interest.
      Presented as a witness by Local 48 was Edward F. Strong, a Sergeant in the
 Police Department, while the Town presented Town Manager John R. Kennedy as a 
 witness.  Neither Party introduced any exhibits.  The Town submitted a post-hearing
 memorandum, which has been considered by the hearing examiner.
      Local 48 is a public employee organization within the meaning of 26 M.R.S.A.
 Section 967(1).  The Town is a public employer as defined in 26 M.R.S.A. Section
 962(7).  The jurisdiction of the hearing examiner to hear this case and rule on
 the petition for unit determination lies in 26 M.R.S.A. Section 966(1).

                               FINDINGS OF FACT

      Local 48 is the exclusive bargaining agent for a bargaining unit of Dis-
 patchers and a unit of Patrolmen at the Kittery Police Department.  Collective
 bargaining agreements have been negotiated and are in effect for both of these
 bargaining units.  The parties agree that the three Sergeants in the Department
 supervise both the Dispatchers and the Patrolmen, performing such duties as set-
 ting up work schedules and assigning work, evaluating the job performance of the
 subordinate employees, and handing out discipline for minor infractions and recom-
 mending discipline for major infractions.  The Police Department also employs a
 Chief of Police.  Local 48 also represents a bargaining unit of Kittery Highway
 Department employees.
      Town Manager John Kennedy testified that he believed substantial problems
 would arise if the same union represented both the supervisory employees and the
 rank-and-file employees.  For example, the Sergeants evaluate the Dispatchers and
 Patrolmen and make a recommended evaluation, which can be changed by the Chief of
 Police, for each employee.  The Town Manager stated that the Sergeants might not
 be as likely to make objective evaluations of fellow union members.  Similarly,
 the Sergeants are authorized to issue oral and written disciplinary warnings and
 to recommend stronger discipline to the Chief, and again the Town Manager felt
 the Sergeants might tend not to discipline the employees properly if all belonged
 to the same union and were accountable to the same union officials.  The handling
 of grievances also would create difficulties, the Town Manager testified, because
 a Patrolman or a Dispatcher could grieve a Sergeant's actions and both the griev-
 ant and the Sergeant might look to the union for advice.  A Sergeant might also
 have to testify contrary to the union's position in one grievance proceeding and
 then have to rely on the union to present his grievance in another proceeding
 creating, in the opinion of the Town Manager, a possible conflict of interest for
 the union.  Negotiating agreements for the three bargaining units with the same
 union officials also would be unduly difficult, according to the Town Manager.
 The Town Manager felt that the basic problem resulted from the fact that all em-
 ployees would have to rely on the same individuals for representation, and that
 the Sergeants should have different people negotiating for them and handling their


 grievances.  Many of these problems and conflicts of interest could therefore
 be avoided, the Town Manager stated, if the Sergeants were represented by a
 different union than the one representing the Dispatchers and Patrolmen.
      At issue is the question whether the Sergeants, the supervisors of the
 Dispatchers and Patrolmen, can also be represented by Local 48 if they so choose.
 The Town urges that supervisors and rank-and-file employees cannot be represented 
 by the same union because substantial problems and conflicts of interest would
 arise, impeding the conduct of labor relations in the Town.[fn]1  Local 48 contends
 that the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961,
 et seq. (Act) grants public employees full freedom of choice in the selection of
 their bargaining agent and that it is a common practice in Maine for the same
 union to represent both the supervisors and the rank-and-file employees in police
 departments and in other municipal divisions.  After carefully considering vari-
 ous provisions of the Act, the hearing examiner concludes that the Labor Relations
 Board has no authority to dictate that employees cannot be represented by a par-
 ticular union of their own choosing.  The hearing examiner accordingly will grant
 Local 48's unit determination petition and will order that an election be conducted
 to determine whether the Sergeants wish to be represented by Local 48.
      It is entirely true, as the Town contends, that some courts have recognized
 that conflicts of interest may arise if the same union represents both supervisory
 personnel and rank-and-file employees.  For example, in Elk Grove Firefighters
 Local No. 2340 v. Willis. 400 F.Supp. 1097 (N.D. Ill. 1975), the Court found that
 a municipal policy prohibiting fire department supervisors from belong to any
 union that also had as members rank-and-file firefighters did not infringe the
 First Amendment rights of the supervisors.  The substantial state interest which
 justified the policy, the Court said, was the need for a disciplined, efficient
 fire department:  "creation of a common union composed of rank and file firefighters
 and their superior officers poses a sufficiently serious threat of ineffective
 supervision based upon divided loyalties to warrant preventive action."  400 F.Supp
      1/ The Town of course does not dispute the point that public sector supervisors
    in Maine can form bargaining units and engage in collective bargaining. See
    26 M.R.S.A. Sections 962(6) and 966(1).

 at 1103.  Accord, York County Fire Fighters Association v. York County. 589 F.2d
 775 (4th Cir. 1978).[fn]2  However, in Orr v. Thorp, 308 F.Supp. 1369 (S.D. Fla. 1969),
 the Court struck down a statute authorizing the dismissal of any supervisor who
 joined a labor organization representing teachers, in part on the ground that the
 statute improperly impinged on the constitutional freedoms of expression and
      The hearing examiner acknowledges that certain problems and conflicts of in-
 terest may arise, as outlined by the Town Manager in his testimony, if Local 48
 is permitted to represent both the Sergeants and the subordinate officers in the
 Police Department.  Since no constitutional issues are raised by the instant case,
 however, the hearing examiner concludes that he must look to the Act in deciding
 whether in the Maine public sector the same union may represent both supervisors
 and rank-and-file employees.  Several provisions of the statute are pertinent to
 this inquiry.  First, Section 963 guarantees public employees free exercise of the
 right to join labor organizations of their own choosing:
             No one shall directly or indirectly interfere with, intimidate,
        restrain, coerce or discriminate against public employees or a
        group of public employees in the free exercise of their rights,
        hereby given, voluntarily to join, form and participate in the
        activities of organizations of their own choosing for the pur-
        poses of representation and collective bargaining, or in the
        free exercise of any other right under this chapter.
 Second, Section 966(2) requires that hearing examiners when making bargaining unit
 determinations "insure to employees the fullest freedom in exercising the rights
 guaranteed by this chapter."  Finally, Section 967(2) provides that the Executive
 Director shall conduct a secret ballot election "upon signed petition of at least
 30% of a bargaining unit of public employees that they desire to be represented
 by an organization," and nothing in this provision or in any other section of the
 statute suggests that the Executive Director could refuse to conduct an election
 on the ground that the organization designated by the employees already represents
 a rank-and-file bargaining unit in the department.  The Law Court has said that in
 light of language in the Act the principle of "freedom of employee self-organiza-
 tion" is a "fundamental purpose" of the statute.  Lewiston Firefighters Association

 2/ Other cases cited by the Town do not involve the question whether supervisors
    may be represented by the same union that represents rank-and-file employees,
    and therefore are not particularly pertinent to the present case.

 v. City of Lewiston, 354 A.2d 154, 161 (Me. 1976).
 In the opinion of the hearing examiner the statutory language expresses a
 clear legislative intent that public employees are entitled to the fullest free-
 dom to join labor organizations of their own choosing.  While the Legislature
 could have placed certain limitations or restrictions on the rights of supervisors
 to form bargaining units and join unions, as has been done in other jurisdictions,[fn]3
 no such limitations are apparent in the Act.  Any attempt by this agency to limit
 the right of supervisors to join unions therefore would seem to be directly con-
 trary to the statutory mandate, as such a ruling would interfere with the free
 exercise of the supervisors' right to join a union of their own choosing, guar-
 anteed by Section 963.  The hearing examiner accordingly concludes that he cannot
 lawfully rule, as the Town requests, that the Sergeants cannot be represented
 by Local 48 if they so desire.
      The hearing examiner also notes that the practice in Maine since enactment
 of the Act in 1969 has been to allow the same union to represent both the super-
 visors and the rank-and-file employees in a single department, and there are many
 examples where this has occurred.  Although this practice has the potential for
 creating various problems and conflicts of interest, as previously noted, the
 hearing examiner is not aware of a single instance where it has caused a major
 dispute or disruption in the delivery of public services.  Indeed, the experience
 of the hearing examiner suggests that the practice has fostered good labor rela-
 tions in the State.  Thus, while the concerns expressed by the Town certainly are
 legitimate, they seem somewhat overstated.
      The hearing examiner therefore will order that a bargaining unit of Sergeants
 at the Kittery Police Department be established and that the Labor Relations
 Board proceed to conduct a secret ballot election to determine whether a majority

 3/ For example, Section 14(a) of the Labor Management Relations Act. 29 U.S.C.A.
    Section 164(a) provides that no employer subject to the Act can be compelled
    to deal with supervisors as members of bargaining units, meaning in essence
    that supervisors in the private sector are not entitled to form bargaining
    units and negotiate with their employers.  The statute in New Hampshire pro-
    vides that public sector supervisors cannot belong to the same bargaining
    unit as the employees they supervise, although the same union can represent
    both bargaining units.  See, e.g.. City of Concord v. Public Employee Labor
    Relations Board, 407 A.2d 363 (N.H. 1979).  In Minnesota, the same union
    can represent bargaining units of supervisors and of rank-and-file employees,
    but the units must be separate locals of the union which bargain separately
    with the employer.  County of Washington v. AFSCME, Council 91, 262 N.W.2d
    163 (Minn. 1978).
  of the Sergeants wish to be represented by Local 48.  
      On the basis of the foregoing findings of fact and discussion and by virtue
 of and pursuant to the powers granted by 26 M.R.S.A. Section 966, it is
      1.  Local 48's unit determination petition is granted.  The
          supervisory bargaining unit at the Kittery Police Depart-
          ment is composed of all employees holding the Sergeant job
      2.  The Town's objection that Local 48 should not be permitted
          to represent the supervisory bargaining unit is denied.
          The Executive Director or his designee should proceed to
          conduct a secret ballot election to determine whether a
          majority of the supervisors wish to be represented by Local
 Dated at Augusta, Maine, this 5th day of November, 1982.
                                       MAINE LABOR RELATIONS BOARD

                                       Wayne W. Whitney, Jr.
                                       Hearing Examiner
      The parties are advised of their right pursuant to 26 M.R.S.A. Section
 968(4) to appeal this report to the full Labor Relations Board, by filing a
 notice of appeal with the Board within 15 days of receipt of the report.