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

STATE OF MAINE                                      MAINE LABOR RELATIONS BOARD
                                                    Case No. 84-A-02
                                                    Issued:  April 2, 1984
        and                       )
SERVICES UNIT)                    )
        and                       )           REPORT OF APPELLATE REVIEW
                                  )           OF UNIT DETERMINATION REPORT
COUNCIL NO. 74, AMERICAN          )
        and                       )
ASSOCIATION                       )
     This is an appeal from a unit determination report, filed pursuant to
26 M.R.S.A. Section 979-G(2) on January 23, l984, by Teamsters Local No. 48
("Local 48").  The hearing examiner below, in his decision dated January 10,
1984, determined that the State employee job classifications, which Local 48
sought to sever from the current State of Maine Institutional Services bargain-
ing unit through a petition for unit determination, did share a clear and
identifiable community of interest with the other positions in the current
bargaining unit.  The hearing examiner then concluded that the existence of
said community of interest mandated the denial of Local 48's unit determination
petition.  Furthermore, the hearing examiner held that the provision of
26 M.R.S.A. Section 979-E(2), which discourages excessive fragmentation among
State employee bargaining units, also justified denial of Local 48's request
for severance.  On appeal before this Board, Local 48 contends that the hearing
examiner erred as a matter of law in denying the unit determination petition.
     A hearing on this matter was held on February 14, 1984, Alternate Chairman
Donald W. Webber presiding, with Employer Representative Thacher E. Turner and


Alternate Employee Representative Gwendolyn Gatcomb.  The Appellant, Local
48, was represented by Jonathan G. Axelrod, Esq.  The public employer, the
State of Maine ("State"), was represented by Peter H. Stewart, Esq.  The
certified bargaining agent of the Institutional Services Unit, Council No. 74,
American Federation of State, County and Municipal Employees ("Council 74"),
was represented by Stephen P. Sunenblick, Esq.  The Maine State Employees
Association ("MSEA") was represented by Shawn Keenan, Esq.  Since Local 48
did not appeal the hearing examiner's decision on the basis of alleged errors
of fact and since the parties argued the issues of law herein through written
briefs, the hearing was limited to consideration of Local 48's motion to
reopen the record for the purpose of taking evidence concerning events which
allegedly occurred after the hearing below.  The Board, noting that this is
an appellate proceeding and not a de novo hearing, denied Local 48's motion.
All of the parties but the MSEA filed appropriate briefs, which have been
considered by the Maine Labor Relations Board.
     Local 48 is a "state employee organization" within the meaning of 26 M.R.S.A.
Section 979-F(2)(A).  The State is the "public employer" of all of the employees
in the current Institutional Services Unit, as defined in 26 M.R.S.A. Section
979-A(5).  Council 74 is the certified "bargaining agent," within the definition
of 26 M.R.S.A. Section 979-A(1), of the Institutional Services Unit.  MSEA is
a state employee organization.  The jurisdiction of the Maine Labor Relations
Board to hear this appeal and render a report of appellate review herein lies
in 26 M.R.S.A. Section 979-G(2).
                               FINDINGS OF FACT
     The facts in this unit determination appeal are not in dispute.  The hearing
examiner's findings of fact, reported at pages 3 through 9 of the unit determin-
ation report, were fully and adequately made and included those facts militating
towards a result contrary to that ultimately reached below.  The Board, therefore,
incorporates the hearing examiner's findings of fact herein by reference, as if
the same were fully set forth at this juncture.

     Under the provisions of the jurisdictional Statute which authorizes the
conduct of this proceeding by this Board, Section 979-G(2) of the State Employees
Labor Relations Act ("Act"), 26 M.R.S.A. Section 979, et seq., this is an appel-
late matter.  Our function at this juncture is, therefore, to review the decision
of the hearing examiner below and not to conduct a de novo hearing on the matter
which was before said hearing examiner.  Teamsters Local Union No. 48 and
City of Portland, Report of Appellate Review of Unit Determination Hearing, at
5-6 (Feb. 20, 1979).  We have often stated that the standard of review applicable
in unit appeals is that the hearing examiner's determinations and rulings will
be set aside if they are "unlawful, unreasonable, or lacking in any rational
factual basis."  Town of Sabattus and Teamsters Local Union No. 48, MLRB No.
82-A-01, at 2 (Sept. 17, 1981); Auburn Firefighters Association and City of
Auburn, MLRB No. 83-A-07, at 4 (Dec. 5, 1983).  Although these decisions involved
municipalities and were issued under the Municipal Public Employees Labor Rela-
tions Act, 26 M.R.S.A. Section 961, et seq., we note that the relevant portion
thereof, Section 968(4), is essentially identical to Section 979-G(2) of the
Act and, therefore, we hold that said standard of review is applicable herein.
     Local 48 is seeking to sever State employee job classifications in the
Department of Corrections from the current Institutional Services Unit and,
thereby, to create a separate Department of Corrections Employees bargaining
unit.  The hearing examiner correctly applied the relevant controlling decisions
of this Board in holding 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."  Unit Deter-
mination Report, at 10.  Since the proceeding below was a unit determination
hearing, the controlling criteria therefor are those set forth in Section 979-E
(2) of the Act:  (1) positions in State employee bargaining units must share a
clear and identifiable comunity of interest and (2) excessive fragmentation
among bargaining units in State Government should be avoided.
     This Board has repeatedly outlined the eleven factors to be weighed in
determining the presence or absence of the requisite community of interest among
particular employee classifications.  Said relevant criteria, from our lead
decision of AFSCME and City of Brewer, MLRB No. 79-A-01, at 3-4 (Oct. 17, 1979),

are cited at page 11 of the unit determination report.  The report, at pages
11 through 15, procedes to examine each of the enumerated factors in detail,
within the factual context under investigation.  No purpose would be served
by repeating that discussion at this juncture.  We hereby incorporate the
hearing examiner's community of interest discussion herein by reference.  We
have carefully reviewed the analysis of each of the component community of
interest factors as well as the ultimate community of interest determination
reached below.  We affirm the hearing examiner's conclusion that the employee
classifications sought to be severed do share a clear and identifiable community
of interest with the other positions in the Institutional Services Unit.  This
conclusion is lawful, reasonable, and is fully supported by the facts in this
matter.  Local 48's petition for unit determination was, therefore, properly
     The hearing examiner then considered whether creation of the proposed
Corrections unit would be contrary to the discouragement of unit fragmentation
provision of Section 979-E(2).  This Section of the Act clearly reflects a
legislative awareness of the large number of State employees and of the potential
for a proliferation of small bargaining units in State government.  In response
to this enactment, the Executive Director created the present job classification
based bargaining units in 1976.  Under the unit formula adopted at that time,
no specific job classification is found in more than one State employee bargain-
ing unit.  Local 48's severance request, if successful, would result in five
particular employee classifications being included in two separate bargaining
units.  Unit Determination Report, at 16.  Such a consequence would undermine
the rationale for the separation of State employee bargaining units and could
have a significant impact on all such units in the future.  In light of the
aforementioned standard of review, we affirm the hearing examiner's conclusion
that severing the Corrections Unit would create excessive fragmentation among
the State employee bargaining units.
     This decision does not mean, nor should it be read to imply, that the com-
position or the number of State employee bargaining units established in 1976
can never be altered.  As was pointed out at page 17 of the unit determination
report:  "[j]ob duties, employment practices and organizational structures change,
and it might be expected that the present units will likewise change."  With the
passage of time, changes may transpire which will affect one or more of the

component community of interest factors for the classifications in a given
bargaining unit and, therefore, the relationship or affinity among said classi-
fications will also change.  The hearing examiner's decision which is being
affirmed herein merely demonstrates that the community of interest, among the
positions in the Institutional Services Unit which justified the creation of
said unit in 1976, continues to exist.
     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 979-G(2), it is ORDERED:
     1.  That the Unit Determination Appeal, filed by Teamsters
         Local Union No. 48 on January 23, 1984, be and hereby
         is denied.
     2.  That the Unit Determination Report dated Janury 10, 1984,
         be and hereby is affirmed.
     3.  That the Executive Director shall, proceed to schedule and
         conduct a bargaining agent decertification/certification
         election for the Institutional Services Bargaining Unit
         of the State of Maine.
Dated at Augusta, Maine, this 2nd day of April, 1984.
                                       MAINE LABOR RELATIONS BOARD

The parties are advised         
of their right, pursuant               /s/_____________________________________
to Title 26 M.R.S.A. Sections          Donald W. Webber, Alternate Chairman
979-G(2) and 972, to seek
review of this decision by
the Superior Court, by filing
a complaint in accordance              /s/_____________________________________
with Rule 80B of the Rules             Thacher E. Turner, Employer Representative
of Civil Procedure, within
15 days of the date of this
                                       Gwendolyn Gatcomb, Alternate Employee