Teamsters and State Institutional Services Unit and AFSCME and MSEA, No. 83-UD-25, 
affirmed by Board, 84-A-02.

STATE OF MAINE                                    MAINE LABOR RELATIONS BOARD
                                                  Case No. 83-UD-25

                  Petitioner,      )
  and                              )
SERVICES UNIT),                    )
                    Employer,      )               UNIT DETERMINATION REPORT
  and                              )
COUNCIL NO. 74, AMERICAN           )
  Certified Bargaining Agent,      )
  and                              )
                  Intervenor.      )
     The question presented in this unit determination case is whether a bargaining
unit of Department of Corrections employees should be severed from the State of
Maine Institutional Services bargaining unit.  Teamsters Local 48 (Local 48) filed
petitions for a unit determination and an election pursuant to 26 M.R.S.A. Section
979-F(2)(A)(Supp. 1982) on April 27, 1983, seeking to represent a bargaining unit
of Corrections employees to be severed from the existing Institutional Services
unit.  The Institutional Services bargaining unit is represented by Council No. 74
of the American Federation of State, County and Municipal Employees (AFSCME).  On
August 24, 1983 the full Labor Relations Board ruled that Local 48's petitions were
supported by an adequate showing of employee interest, and granted the Maine State
Employees Association's (MSEA) petition to intervene in this proceeding.  Council 74,
AFSCME and MSEA, MLRB No. 84-A-01.


     Hearings on Local 48's petitions were held on October 11 and 12, 1983 before
the undersigned hearing examiner in Augusta, Maine.  Local 48 was represented by
Jonathan G. Axelrod, Esq.; the State of Maine (State) by Gerard P. Conley, Jr.,
Esq.; AFSCME by Executive Director Charles W. Sherburne; and MSEA by Shawn C.
Keenan, Esq.  Local 48 presented the following witnesses:
     Donald Allen                   Commissioner, Department of Corrections                 
     Vincent Mecca                  Guard, Maine State Prison
     Robert Prescott                Guard, Maine State Prison
     Maurice Jewett                 Guard, Maine State Prison
     David Jones                    Guard, Maine State Prison
     John Eckhardt                  Guard, Maine State Prison
     Dan Swindler                   Guard, Maine State Prison
     Thomas Mickler                 Clerk, Maine State Prison
The State presented as witnesses:
     Gary Mather                    Assistant Director, Governor's Office of
                                     Employee Relations
     Donald Allen                   Commissioner, Department of Corrections
The following documents were admitted into the record:
     Local 48 Exhibit No. 1         The job description for each job classification
                                    presently included in the Institutional Services
                                    bargaining unit
     Local 48 Exhibit No. 2         Maine State Prison policy memorandum, dated
                                    January 1, 1982
     State Exhibit No. 1            Copy of 34 M.R.S.A.  32 and 33 (Supp. 1982),
                                    the law which created the Department of Cor-

     State Exhibit No. 2            Maine Labor Relations Board Unit Determination
                                    Report dated September 22, 1976

In addition, upon agreement of the parties, the State submitted after the close of
the hearing several lists which show the Department of Corrections job classifica-
tions presently included in the Institutional Services unit.  The hearing examiner
has marked this material "Hearing Examiner Exhibit No. 1," and hereby makes it
part of the record.
     Local 48 urges that its petitions should be granted because the Department of
Corrections employees do not share the clear and identifiable community of interest
required by 26 M.R.S.A.  979-E(2)(Supp. 1982) with the other members of the Insti-

tutional Services bargaining unit, especially since a separate Department of Cor-
rections was created in 1981.  The State contends that the petitions should be
denied because no change in circumstances surrounding formation of the Institu-
tional Services unit has been shown, and because state government bargaining
history favors retention of the present unit.  AFSCME stated during the hearing
that if a Department of Corrections unit is to be created, it should include all
public employee job classifications in the Department, not just those classifi-
cations presently included in the Institutional Services unit.  AFSCME did not
present any evidence in support of its position, however.  MSEA adopted a neutral
position and likewise did not present any evidence.  Local 48 and the State filed
post-hearing briefs, which have been considered by the hearing examiner.  The last
brief was filed on November 28, 1983.
     Local 48 is a "state employee organization" within the meaning of 26 M.R.S.A.
 979-F(2)(A)(Supp. 1982).  The State is the "public employer" defined in 26 M.R.S.A.
 979-A(5)(Supp. 1982).  AFSCME is the certified bargaining agent for the Institu-
tional Services bargaining unit.  MSEA is a state employee organization.  The juris-
diction of the hearing examiner to hear this case and rule on the petitions lies
in 26 M.R.S.A.  979-E (Supp. 1982).
                               FINDINGS OF FACT
     Upon review of the entire record the hearing examiner finds:
     1.  The Institutional Services bargaining unit was one of seven state govern-
ment bargaining units created on September 22, 1976 when the Executive Director issued
a unit determination report based on numerous unit petitions filed from 1974 to 1976.
These petitions seeking to represent various bargaining units of State employees
resulted from enactment of the State Employees Labor Relations Act, 26 M.R.S.A.
 979, et seq. (1974 & Supp. 1982) in 1973.  The Executive Director in his report
opted not to establish bargaining units based on departmental lines but rather
grouped job classifications which shared a community of interest, thereby forming
seven bargaining units which, with the exception of the State Police Services bar-
gaining unit, cut across departmental lines.

     2.  The Institutional Services unit included about 65 job classifications
at the time it was formed, with most if not all of these classifications being
located in the Department of Mental Health and Corrections and the Department of
Education.  The Department of Corrections did not exist as a separate entity in
1976.  The Executive Director's rationale for creating the Institutional Services
unit was as follows:
          "Employees in this unit render services and care to patients,
      inmates, residents and "clients" who are confined on a 24-hour,
      7-day-a-week basis at the State's institutions.  These employees
      may require special orientation to the kinds of persons they treat,
      scrutinuze, counsel, educate or guard and their work may require
      shift work, variable work, or overtime, (i.e., there may be no
      standardized work week).  The upper limit of formal education gen-
      erally required of employees in this unit is graduation from high
      school and career development is usually satisfied and enhanced
      through internal promotions, career ladders and in-service training
      programs.  There is limited opportunity for promotions or lateral
      transfers outside the bargaining unit.
           "These employees have substantial concern about their working
      environment, the conduct of persons they serve and the security of
      their particular institutional setting.  Accordingly, they have a
      special interest in shift differential, the former so-called "combat
      pay," holiday pay, call back policy and pay, meal allowances, social
      training required and/or desirable to improve their relationship and
      working ability with the client/patients/inmates whom they serve, shift
      assignments, seniority, job posting and special career ladders."
Corrections job classifications not included in the Institutional Services unit
were placed in other bargaining units, such as the Administrative Services unit,
the Professional and Technical Services unit, and the Supervisory Services unit.
Appeals were taken from the Executive Director's determinations regarding the
Institutional Services unit, but in a decision and order dated February 7, 1977,
the full Labor Relations Board stated that the parties to the appeals had resolved
all issues, and ordered that an election be conducted for members of the unit.
     3.  As the result of a representation election held in April, 1977, AFSCME
was certified as the bargaining agent for the Institutional Services unit on May
2, 1977.  AFSCME and the State have negotiated at least 2 collective bargaining
agreements for the unit, the last of which expired on June 30, 1983.  MSEA ulti-
mately was certified as the bargaining agent for five other of the remaining
state employee bargaining units, and the Maine State Troopers Association was
certified as the bargaining agent for the State Police Services unit.

     4.  The seven state employee bargaining units created in 1976 remain in place
today.  Local 48's petitions represent the first attempt to sever a bargaining
unit from one of the original units.
     5.  In 1981 the Legislature created the Department of Corrections.  In
essence, the Bureau of Corrections was separated from the Department of Mental
Health and Corrections and elevated to the status of a department.  According to
Corrections Commissioner Donald Allen, the new department was established because
of the different needs, philosophies, and constituent pressures between Mental
Health and Corrections.  The Department of Mental Health and Mental Retardation
is treatment-oriented while the primary concern of the Corrections Department
is security or protection of the public, with treatment being only a secondary
concern.  The Department of Corrections operates 3 major facilities, the State
Prison at Thomaston, the Maine Correctional Center in South Windham, and the
Maine Youth Center in South Portland, as well as a number of smaller facilities.
such as the Charleston correctional facility and the Central Maine Pre-Release
Center.  Creation of the Corrections Department has meant that Corrections now
has its own line of comunication to the Governor and the Legislature and that it
does not have to compete within a department for scarce funds.  The legislation
which created the new department is found at 34 M.R.S.A.  32 and 33 (Supp. 1982).
     6.  Local 48's unit petition seeks to sever a bargaining unit composed of
all Department of Corrections job classifications presently included in the
Institutional Services unit, as follows:
                      Assistant Manager Metal Shop
                      Assistant Manager of Prison Store
                      Assistant Prison Steward
                      Assistant Wood Shop Manager
                      Baker I
                      Baker II
                      Cook II
                      Cook III
                      Corrections Infirmary Attendant
                      Corrections Officer I
                      Corrections Officer II
                      Correctional Trades Instructor
                      Furniture Shop Manager
                      Guard Sargeant
                      Laundry Supervisor I
                      Print Shop Manager

                      Prison Retail Store Manager
                      Prison Steward
                      Supervisor of Recreation
                      Training School Counselor I
                      Training School Counselor II
                      Wood Shop Foreman
     Five of these job classifications - Baker I, Baker II, Cook II, Cook III, and
Laundry Supervisor I - would also remain in the Institutional Services bargaining
unit if a Corrections unit is severed from the existing unit.  The resulting
Institutional Services unit would also include a number of job classifications
in the Department of Education and the Department of Mental Health and Mental
Retardation such as Houseparent, Mental Health Worker, Assistant Team Leader, and
Occupational Therapy Aide.  The present Institutional Services Unit includes
approximately 1350 employees while the proposed Corrections unit would include
about 450 employees.
     7.  The Corrections employees in the Institutional Services unit perform a
variety of tasks and duties.  For example, according to the job descriptions admit-
ted as Local 48 Exhibit No. 1, Corrections Officers I are "responsible for the
security of a group of inmates and supervise their daily recreational and house-
keeping activities."  The work involves "responsibility for counseling and other-
wise contributing toward the social rehabilitation and readjustment of inmates."
According to documents included in Hearing Examiner Exhibit No. 1, the Corrections
Officers I are paid at State pay range No. 12, while Corrections Officers II are
on pay range No. 15.  The Guards' assignments vary from acting as a wall guard,
in which there is limited or no inmate contact, to positions such as cell block,
yard, or farm guard, "in which the major emphasis is placed upon supervision of
inmates inside or outside the prison walls."  The most important aspect of the
job is "familiarity with and performance of the wide variety of security-related
tasks."  Guards are at pay range No. 12, and Guard Sergeants are on pay range No.
15.  Training School Counselors I are "responsible for participating in the guid-
ance, training and general care of residents requiring correction."  These employ-
ees have major responsibilities for housekeeping activities of a unit or cottage
and a major element of their work "is the care and guidance of residents."  Train-
ing School Counselors I are paid at pay range No. 12, while Training School Counse-
lors II are on pay range No. 15.  The pay ranges of the Corrections workers in-
cluded in the Institutional Services unit run from range No. 9 (Baker I) to 20
(Supervisor of Recreation).

  All employees at the correctional facilities, including the Cooks and Bakers,
are expected to engage in security-related work in the event of a disturbance
among the inmates or residents or an escape.
     8.  The Department of Education and the Mental Health employees in the
Institutional Services unit also perform a variety of tasks related to the care
and control of persons in State custody.  For example, Houseparents I are respons-
ible for "controlling and supervising the work of a small group of students,
patients, or inmates within a cottage, dormitory, corridor, kitchen or similar
area at a state institution."  These employees are responsible for maintaining
order and discipline and for supervising a variety of activities such as clean-
ing, cooking and laundering.  Houseparents I are paid at pay range No. 10 and
Houseparents II at range No. 14.  Mental Health Workers I are responsible "for
assisting in the treatment or education of the mentally ill or mentally retarded."
The work primarily includes resident care duties, education, and treatment, with
responsibility for maintaining resident areas.  Mental Health Workers I are paid
at pay range No. 9, Mental Health Workers II at pay range No. 12, and Mental
Health Workers III at pay range No. 15.  Assistant Team Leaders are responsible
for overseeing the activities of direct care mental health staff.  The work in-
cludes "working with patients on treatment programs, caring for their personal
hygiene, and maintaining the upkeep of the ward."  Assistant Team Leaders are
paid at pay range No. 16.  The pay ranges for Education and Mental Health employ-
ees in the Institutional Services unit range from 3 (Food Service Worker) to 19
(Remotivation Assistant).
     9.  The basic duties and responsibilities of the Corrections employees have
not changed since 1976 when the bargaining unit was established or since 1981 when
the Department of Corrections was created.  The employees still do "hands-on"
work with people in the State's care on a shift basis, 24 hours a day, 7 days a
week.  The Commissioner of Corrections has instituted new screening and hiring
procedures, however, in an effort to upgrade the work force.  Candidates for
Corrections' positions now must take a written test and pass a physical dexterity
test.  A high school diploma is still the minimum educational qualification for
entry level positions.  Although the duties and responsibilities remain the same,
job pressures and stresses have increased for the Corrections employees, especially
because of the increased legal complexities related to corrections work.  This
appeared to the hearing examiner to be true particularly with regard to the Guards
at the State Prison.

    10.  The Corrections Officers, Guards, and Training School Counselors are
required by state law to have a minimum of 80 hours of training at the Maine
Criminal Justice Academy during their first year of employment and a minimum of
20 hours of "in-service" training each year thereafter.  The Criminal Justice
Academy training covers such matters as legal issues, communications skills,
self defense, report writing, the history and philosophy of corrections, and
first aid.  The yearly in-service training includes refresher courses and special-
ized topics such as key control, firearms, transport, and local policies.  All
other Corrections employees get some security training, with the type and amount
of training dependent upon the employee's job duties.  The Corrections Commissioner
testified that the training received by employees is a "question of degree."
    11.  Little interchange occurs between Corrections and Mental Health employees.
Some contact occurs when Corrections employees transport prisoners to mental health
facilities.  Article 39 of the contract between AFSCME and the State provides
that employees may transfer between Departments with positions in the Institutional
Services unit "with the approval of the Commissioner(s) of the Department(s) in-
volved and the consent of the institutional heads concerned, provided the positions
are in the same job classification."  However, Commissioner Allen testified that
Corrections employees could not transfer to Mental Health jobs, although this tes-
timony appears to conflict with the plain language of Article 39.  Robert Prescott,
a Guard at the Prison, testified that he was told by his supervisor he could not
transfer to a mental health facility and that he had to go through the normal
application process to get a job at the facility.  Article 6 of the contract pro-
vides for a five-step grievance procedure, with the fourth step being the Director
of the Governor's Office of Employee Relations.  The Governor's Office of Employee
Relations is responsible for setting the State's labor relations policies.  Since
the Corrections and the Mental Health employees in the Institutional Services,
unit are covered by the same contract, they receive the same benefits, including
paid sick leave, vacations, holidays, and health and life insurance.
    12.  All of the employee witnesses except one testified that they were dis-
satisfied with AFSCME's representation, and all testified that they wished to be
placed in their own bargaining unit so that their concerns and interests could be
better represented.  For example, two witnesses - David Jones and John Eckhardt -
testified that they were opposed to the l981-'83 contract but were told by AFSCME
officials that it didn't matter if they voted against ratification because a

majority of Mental Health employees favored the contract.  Robert Prescott,
Maurice Jewett, Jones, Eckhardt, and Don Swindler testified that AFSCME job
stewards at the Prison refused to file or process certain grievances, usually
because the stewards felt that the grievances did not concern enough employees
or were impractical in light of the time and money involved.  These stewards were
identified as Walter Breen, Sam Charlton, John Struk and Robert Walsh.  Vincent
Mecca and several other witnesses testified that the job stewards or AFSCME
officials refused to pursue certain bargaining proposals raised by Prison employ-
ees, often on the ground that Mental Health employees would not go along with the
proposals.  Eckhardt testified that AFSCME relieved him of his duties as job stew-
ard even though all of the employees on his shift wanted him to represent them.
Jewett also is a former job steward.
    13.  At least two Prison employees - Walter Breen and Robert Walsh - were
members of the negotiating committee that bargained the 1981-'83 contract with the
State.  Several provisions in that contract deal with the particular needs of
Prison employees, including Article 10 (Posting), Article 34 (Employee Meals) and
Article 36 (Uniforms and Protective Clothing).
     At issue is the question whether the Department of Corrections employees in
the Institutional Services unit should be severed from the unit to form a Correc-
tions bargaining unit.  For the reasons discussed below, the hearing examiner finds
that the unit should not be severed because the Corrections employees share a clear
and identifiable community of interest with the members of the existing unit and
because severance would create excessive fragmentation among state government
bargaining units.  Local 48's petitions accordingly will be denied.
     The first question to be decided concerns the standards which apply in a
severance proceeding.  Local 48 contends that a unit determination petition is
the proper vehicle for raising a severance question and that consequently the
3 criteria set forth in 26 M.R.S.A.   979-E(2) (Supp. 1982) - fullest freedom,
clear and identifiable community of interest, and avoidance of excessive


fragmentation - are the standards to be applied in this case.[fn]1  The State urges
that this case is in the nature of a unit clarification proceeding and that Local
48 therefore must show that circumstances surrounding formation of the existing
unit have changed sufficiently to warrant modification of the unit, as required
by 26 M.R.S.A.  979-E(3)(Supp. 1982) and Rule 1.13 of the Labor Relations Board's
Rules and Procedures, 12-180 CMR Chapt. 1,  1.13 (1978).[fn]2
     The hearing examiner must reject the State's position because the Labor Rela-
tions Board has ruled that a unit determination petition accompanied by a claim
for recognition or an adequate showing of interest is the proper mechanism for
attempting to sever a bargaining unit from an existing unit.  See City of Bangor
and Local 1599, IAFF, MLRB No. 80-A-03 at 3-4 (July 18, 1980); Teamsters Local
48 and Council #74, AFSCME, Unit Determination Report at 12-13 (July 10, 1981).
Accompanying Local 48's unit determination petition was its petition for election
supported by an adequate showing of interest by Corrections employees.  The unit
determination petition therefore properly raises the severance question and the
1/  Section 979-E(2) states:
        In order to insure to employees the fullest freedom in exercising
    the rights guaranteed by this chapter, to insure a clear and identi-
    fiable community of interest among employees concerned, and to avoid
    excessive fragmentation among bargaining units in State Government,
    the executive director of the board or his designee shall decide in each
    case the unit appropriate for purposes of collective bargaining.
2/  Section 979-E(3) states:
        Where there is a certified or currently recognized bargaining
    representative and where the circumstances surrounding the formation of
    an existing bargaining unit are alleged to have changed sufficiently to
    warrant modification in the composition of that bargaining unit, any pub-
    lic employer or any recognized or certified bargaining agent may file a
    petition for a unit clarification, provided that the parties are unable to
    agree on appropriate modifications and there is no question concerning
        Rule 1.13 similarly requires allegation of changed circumstances,
    and also sets forth several other grounds for denying unit clarification
    petitions.  Local 48 filed a unit clarification petition along with its
    unit determination and election petitions, but on May 6, 1983 the Executive
    Director denied the petition because Local 48 does not have standing to
    seek unit clarification in this case.

criteria set forth in Section 979-E(2) will be applied in this case.[fn]3       
     A.  Community of Interest.  Local 48 urges that the Corrections employees
do not share the clear and identifiable community of interest required by Section
979-E(2) with the Mental Health employees, and that the State acknowledged the
distinct needs, concerns and interests of the Corrections employees when it es-
tablished a separate Department of Corrections in 1981.  The Labor Relations
Board has stated the factors to be considered in making community of interest
determinations many times:
     (1) similarity in the kind of work performed; (2) common supervision
     and determination of labor-relations policy; (3) similarity in the
     scale and manner of determining earnings; (4) similarity in employment
     benefits, hours of work and other terms and conditions of employment;
     (5) similarities in the qualifications, skills and training of employees;
     (6) frequency of contact or interchange among the employees; (7) geo-
     graphic proximity; (8) history of collective bargaining; (9) desires of
     the affected employees; (10) extent of union organization; and (11) the
     public employer's organizational structure.
AFSCME and City of Brewer, MLRB No. 79-A-01 at 3-4 (Oct. 17, 1979).  Having care-
fully considered all of these factors, the hearing examiner finds that the Cor-
rections employees share a clear and identifiable community of interest with the
other bargaining unit members.  Local 48's representation petitions therefore must
be denied.
     1.  Similarity in work performed.  It is entirely true, as Local 48 contends,
that the primary function of the Corrections Department is security while the pri-
mary function of the Department of Mental Health and Mental Retardation is treat-
ment.  This means that the two groups of employees perform somewhat different
types of work - Corrections employees are primarily responsible for supervising
inmates and insuring that they remain in the custody of the State, while Mental

3/  The National Labor Relations Board (NLRB) has developed standards by which
    it analyzes severance petitions.  In Mallinckrodt Chemical Works, 162 NLRB
    387, 397-398 (1966), the NLRB announced its intention not to apply rigid and
    inflexible rules in severance cases but rather to weigh all relevant factors
    on a case-by-case basis, identifying six illustrative areas of inquiry.  While
    the NLRB in Mallinckrodt was concerned with craft severance petitions in light
    of Section 9(b)(2) of the National Labor Relations Act, 29 U.S.C.A.  159(b)
    (2)(1973), it has considered the factors identified in that case in proceed-
    ings seeking severance of non-craft, departmental units.  See, e.g., Hackney
    Corp., 224 NLRB 197 (1976); Kimberly-Clark Corp., 197 NLRB 1172 (1972).  The
    upshot of the federal case law is that many of the factors considered in light
    of the criteria set forth in Section 979-E(2) are also examined by the NLRB
    in its severance cases.


Health employees are responsible for caring for and supervising patients.
However, in a broader sense both groups do similar work - supervising, control-
ling, caring for or otherwise working directly with persons subject to the
State's custody or control.
     In addition, comparison of the job descriptions for various classifications
in the two Departments reveals considerable similarity in the type of work per-
formed.  For example, Training School Counselors I in Corrections are responsible
for participating in the "guidance, training and general care of residents re-
quiring correction," with major responsibility for housekeeping activities.
Houseparents I in Mental Health similarly are responsible for "controlling and
supervising the work of a small group of students, patients or inmates" in a
cottage or dormitory, including supervision of such activities as cleaning, cook-
ing and laundering.  Corrections Officers I are responsible for the "security of
a group of inmates and supervise their daily recreational and housekeeping
activities."  Mental Health Workers and Assistant Team Leaders likewise are re-
sponsible for resident care duties and maintaining resident areas.  The major ex-
ception is the work performed by the Guards at the State Prison, who do not per-
form inmate care or housekeeping duties but rather "a wide variety of security-
related tasks."  The hearing examiner concludes, however, that a majority of the
employees proposed to be included in the new unit perform duties similar to those
performed by Mental Health employees.
     2.  Common supervision and labor relations policy.  The two groups of employ-
ees are not subject to common supervision; the employees are supervised by persons
within their respective Departments.  The employees are subject to common labor
relations policy determinations, however; the Governor's Office of Employee Rela-
tions sets labor relations policy for the departments in state government and also
serves as the final step before arbitration in the grievance procedure set forth
in Article 6 of the Institutional Services contract.
     3.  Similarity in earnings.  Both groups occupy similar ranges on the State's
pay scale.  Corrections Officers I and II, Guards and Guard Sergeants, and Train-
ing School Counselors I and II in Corrections are on pay range No. 12 or 15.  House-
parents I and II, Mental Health Workers I, II, and III, and Assistant Team Leaders
occupy ranges from No. 9 to 16.  The pay scales among Corrections employees in the
Institutional Services unit range from Nos. 9 (Baker I) to 20 (Supervisor of Recrea-
tion), while the range among the remaining unit members is from 3 (Food Service


Worker) to 19 (Remotivation Assistant).

     4.  Similarity in benefits and hours of work.  The employees receive the same
benefits and work on a shift basis.  Both Departments operate facilities on a 24
hours per day, 7 days per week basis.
     5.  Similarity in skills and training.  Unlike Mental Health employees,
Corrections employees receive training in security matters.  This is particularly
true with regard to the Corrections Officers, Guards, and Training School Counse-
lors, who are required to have 80 hours of training at the Criminal Justice Academy,
during their first year of employment and 20 hours of local training each year
thereafter.  This training covers a wide variety of security-related topics, from
report writing to firearm use.  Other Corrections employees receive a lesser de-
gree of security training.
     The Commissioner of Corrections is attempting to up-grade the work force. While
a high school diploma is still the minimum educational requirement, the Commissioner
has instituted a written test and a physical dexterity test for job applicants.
There is no evidence of similar changes at Mental Health and Mental Retardation.
     6.  Interchange and geographic proximity.  The only interchange between Correc-
tions and Mental Health employees occurs when Corrections personnel take an inmate
to a mental health facility.  There is no geographic proximity between Corrections
and Mental Health employees; both groups of employees work at institutions and
facilities scattered throughout Maine.  There also is little interchange among
Corrections employees working at the different facilities.  Some contact occurs
when the employees escort inmates from one Corrections facility to another, and at
the training sessions at the Criminal Justice Academy.
     7.  Bargaining history and desires of employees.  There is a 6-1/2 year bar-
gaining history between AFSCME and the State for the Institutional Services unit.
At least 2 contracts have been negotiated during this period.  The instant peti-
tion represents the first attempt by Corrections employees to separate themselves
from the bargaining unit.
     The employee witnesses expressed considerable dissatisfaction with the adequacy
of AFSCME's representation of Corrections employees.  There was extensive testimony
to the effect that AFSCME job stewards and officials have refused to file or process
grievances at the Prison or to raise bargaining proposals sought by Prison employees.

and have otherwise ignored the needs and concerns of Prison employees.  The
adequacy of representation by the incumbent bargaining agent is an important
factor in the NLRB's consideration of severance petitions.  See, e.g., Bendix
Corp., 227 NLRB 1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-05
(1976).  The NLRB holds, however, that "a union that does not accede to all
demands made upon it by the unit seeking to be severed cannot be accused of in-
adequately representing that unit based on that fact a1one."  Firestone Tire and
Rubber Co., 223 NLRB 904, 906 (1976).  A number of factors are considered, in-
cluding whether members of the proposed unit have participated in the affairs
of the incumbent union by acting as stewards and bargaining team members, and
whether any special provisions affecting the interests of the proposed unit have
been included in bargaining agreements.  Bendix Corp., 227 NLRB at 1537; Beaunit
Corp., 224 NLRB at 1504.
     In the instant case Prison employees have acted as AFSCME stewards and bar-
gaining team members.  Two employees who testified - Maurice Jewett and John
Eckhardt - formerly were stewards although Eckhardt was involuntarily relieved
of his duties by AFSCME.  Four other Prison employees - Walter Breen, Sam Charl-
ton, John Struk and Robert Walsh - also were identified as AFSCME stewards,
although the witnesses testified that these stewards did not adequately represent
the interests of Prison employees.[fn]4  Two of these employees - Breen and Walsh -
were members of the negotiating committee that bargained the 1981-'83 Institutional
Services contract.  Three Articles in the contract, Articles 10 (Posting), 34
(Employee Meals), and 36 (Uniforms and Protective Clothing), touch upon the needs
of Prison employees.  Although only Article 10 places Prison employees in a favored
position, the Articles at the very least show that the interests of Prison employ-
ees were not totally ignored during negotiations.
     In short, the evidence regarding the adequacy of representation by AFSCME is
mixed; the witnesses clearly felt they were being inadequately represented while
other evidence shows that Prison workers have participated as stewards and bar-
gaining team members and that some provision has been made for their interests in
the most recent contract.  The desires of the employees who testified are clear,
however; they wish to be placed in a separate unit because they believe this will
4/  The record does not suggest any reasons as to why these employees would not
    adequately represent the interests of their fellow employees.


result in better representation of their needs and concerns.

     8.  Employer organizational structure.  As noted, Corrections employees now
work for a separate, "functionally distinct" department that did not exist in 1976
when the bargaining unit was established.  The fact that Corrections employees
no longer work for the same department as Mental Health employees is not neces-
sarily conclusive, of course; it is one factor to be weighed along with the other
factors discussed above.  It also must be noted that, although Corrections employ-
ees work for a new department, their duties and responsibilities have not changed
appreciably since 1976.  The major change is that they now work for the Department
of Corrections instead of the Department of Mental Health and Corrections.
     9.  Conclusion.  As is typically the case in bargaining unit determinations,
this case presents an array of facts which cut both ways on the central community
of interest issue.  Thus, Local 48 is entirely correct in urging that the facts
that the Corrections employees work for a functionally distinct department, perform
a security function, have different supervision and training, have little inter-
change with Mental Health employees, and wish to be in a separate bargaining unit,
all indicate that these employees do not share a community of interest with the
other bargaining unit members.  However, although it is a close question, the hear-
ing examiner believes that these facts are outweighed by the facts that the employees
perform similar types of work even though the Corrections employees have a security
function, are subject to a common determination of labor relations policy, occupy
similar salary scales and receive the same benefits, perform shift work, and have
participated in the representation activities of the incumbent agent.  All of these
facts show that the Corrections employees share a community of interest with the
Mental Health and Education employees in the unit.  Based upon consideration of all
the facts presented in this case, then, the hearing examiner concludes that the
Corrections employees share a clear and identifiable community of interest as re-
quired by Section 979-E(2) with the other employees in the Institutional Services
bargaining unit.  It therefore would not be appropriate to sever a bargaining unit
of Corrections employees from the existing unit, and Local 48's representation
petitions must be denied.
     B.  Excessive Fragmentation.  The hearing examiner also finds that severance
of the Corrections unit would constitute excessive fragmentation within the mean-
ing of Section 979-E(2).  With the exception of the State Police bargaining unit,

the bargaining units established in 1976 are not based on departmental lines but
instead are based on job classifications.[fn]5  Six of the 7 bargaining units there-
fore cut across departmental lines, and any particular job classification is
found in only one bargaining unit.[fn]6  Although the parties resolved the appeals
relating to the Institutional Services unit themselves, the full Labor Relations
Board did review some of the other bargaining units established in 1976 and accepted
the concept of creating bargaining units based on job classifications.  Council 74,
AFSCME and MSEA, Decision on Appellate Proceedings (March 17, 1977).
     Local 48 now argues that the Executive Director erred in 1976 when he deter-
mined the structure of the Institutional Services unit.  The hearing examiner can-
not accept this contention.  Certainly there are several accepted ways of structur-
ing bargaining units, including basing the units on departmental lines as Local 48
suggests,[fn]7 but the method of grouping job classifications to form units hardly
can be considered arbitrary or irrational.  Indeed, as the 1976 unit report
shows, this is an accepted method of establishing state government bargaining units.
It is also significant that the units established in 1976 have seen over 6 years
of successful bargaining.
     Local 48's proposed unit thus would be the only bargaining unit in state
government based in part on department lines; as noted the State Police unit is
composed of all non-supervisory public employees in that department.  Five positions
in the new unit (Baker I, Baker II, Cook II, Cook III, and Laundry Supervisor I)
would also be included in the remaining Institutional Services unit.  In light of
5/  The reason why an exception was made with regard to the State Police unit was
    stated in the 1976 unit report as follows:  "it is desirable to establish this
    separate bargaining unit in such a way to avoid conflicting loyalties during
    periods of labor unrest . . ."  State Police Troopers, Corporals and Sergeants
    were included in this unit, while the Lieutenants and Captains were included in
    the Supervisory Services bargaining unit.
6/  The only exception noted in the 1976 report was the Custodian classification,
    which was included in both the Institutional Services unit and the Operations,
    Maintenance and Support unit.  The Executive Director recommended that this
    problem of splitting a job classification between two units be resolved by re-
    naming the Custodian classification in the Institutional Services unit.  The
    present Institutional Services unit does not contain a Custodian classification.
7/  Local 48 is of course seeking a unit of only part of the rank-and-file Correc-
    tions employees (those included in the Institutional Services unit); other
    rank-and-file employees would remain in their present bargaining units.  AFSCME
    stated at the hearing that if a Corrections unit is to be severed, then it should
    include all rank-and-file employees working for the Corrections Department.
    Since neither AFSCME nor any other party presented evidence or argument concern-
    ing this position, the hearing examiner gives it no consideration in this report.

the present structure of state government bargaining units, the hearing examiner
therefore concludes that severing the unit proposed by Local 48 would create ex-
cessive fragmentation among the units.  By making this conclusion the hearing
examiner does not intend to imply that the units established in 1976 can never
be changed.  Job duties, employment practices and organizational structures
change, and it must be expected that the present units will likewise change. The
hearing examiner holds only that under the present facts, severance of the pro-
posed unit would constitute undue fragmentation.  Local 48's petitions must also
be denied for this reason.
     On the basis of the foregoing findings of fact, and by virtue of and pursuant
to the powers granted to the hearing examiner by 26 M.R.S.A.  979-E (Supp. 1982),
it is ORDERED:
     Local 48's unit determination and election petitions filed in this
     proceeding on April 27, 1983 are denied.
Dated at Augusta, Maine this 10th day of January, 1984.
                                       MAINE LABOR RELATIONS BOARD
                                       Wayne W. Whitney, Jr.
                                       Hearing Examiner
     The parties are advised of their right pursuant to 26 M.R.S.A.  979-G(2)
(Supp. 1982) to appeal this report to the full Maine Labor Relations Board by
filing a notice of appeal within 15 days of the date of this report.