AFSCME and Teamsters and Cumberland County, No. 84-A-04, affirming 84-UD-11.
     




     STATE OF MAINE                                         MAINE LABOR RELATIONS BOARD
                                                            Case No. 84-A-04
                                                            Issued:  April 25, 1984
     
     ______________________________________
                                           )
     COUNCIL NO. 74, AMERICAN FEDERATION   )
     OF STATE, COUNTY AND MUNICIPAL        )
     EMPLOYEES, AFL-CIO,                   )
                                           )
             Certified Bargaining Agent,   )
                                           )
                      and                  )
                                           )
     TEAMSTERS LOCAL UNION NO. 48, STATE,  )            REPORT OF APPELLATE REVIEW
     COUNTY, MUNICIPAL and UNIVERSITY      )           OF UNIT DETERMINATION REPORT
     EMPLOYEES,                            )
                                           )
                             Petitioner,   )
                                           )
                      and                  )
                                           )
     CUMBERLAND COUNTY,                    )
                                           )
                             Employer.     )
     ______________________________________)
     
     
           Presented for decision in this appeal of a unit determination
     report are the questions whether the hearing examiner made an erroneous
     finding of fact and whether he erred by finding that a group of law
     enforcement job classifications does not share a clear and identifiable
     community of interest with other positions included in the Cumberland
     County Sheriff's Department bargaining unit. We find that the hearing
     examiner committed no error and affirm his report.
     
           Council No. 74 of the American Federation of State, County and
     Municipal Employees, AFL-CIO (Council 74), the bargaining agent for
     the Sheriff's Department bargaining unit, filed its timely appeal
     pursuant to 26 M.R.S.A.  968(4)(Supp. 1983) on March 30, 1984,
     seeking review of a unit determination report issed on March 16, 1984.
     The hearing examiner in the report granted Teamsters Local Union
     No. 48's (Local 48) petition to sever the law enforcement positions
     from the bargaining unit and ordered formation of a Cumberland County
     Law Enforcement bargaining unit consisting of the six law enforcement

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     positions. Presently pending before this agency is Local 48's
     petition for an election for the law enforcement unit.
     
           A hearing on the appeal was held on April 18, 1984 in Augusta,
     Maine, Chairman Sidney W. Wernick presiding, with Employer Repre-
     sentative Thacher E. Turner and Employee Representative Harold S.
     Noddin. Council 74 was represented by Stephen P. Sunenblick, Esq.,
     and Local 48 by Walter J. Stilphen, Jr.  No appearance was entered
     on behalf of Cumberland County, the employer of the Sheriff's
     Department employees.
     
     
                                   JURISDICTION
     
           Council 74 is an "aggrieved party" within the meaning of 26
     M.R.S.A.  968(4)(Supp. 1983). Local 48 is a public employee labor
     organization, and Cumberland County is a "public employer" as defined
     in 26 M.R.S.A.  962(7)(Supp. 1983). The jurisdiction of the Maine
     Labor Relations Board to hear this appeal and render a decision and
     order lies in Section 968(4).
     
     
                                 FINDINGS OF FACT
     
           Upon review of the entire record, the Labor Relations Board
     adopts the following findings of fact made by the hearing examiner:
     
           1.  Teamsters Local Union No. 48 is a labor organization engaged
     in the business of organizing and representing public employees for
     purposes of collective bargaining, within the meaning of the Muni-
     cipal Public Employees Labor Relations Act, Title 26 M.R.S.A. Section
     961, et seq.
     
           2.  Council No. 74, American Federation of State, County and
     Municipal Employees, AFL-CIO, is the certified bargaining agent,
     within the definition of 26 M.R.S.A. Section 962(2), for the current
     Cumberland Councy Sheriff's Department Employees bargaining unit.
     
           3.  All employees, whose job classifications presently constitute
     the Cumberland County Sheriff's Department Employees bargaining unit
     and including the Officer Friendly position, are public employees,
     within the definition of 26 M.R.S.A. Section 962(6).

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           4.  By stipulation of Council 74 and the Employer at the hearing,
     the Officer Friendly position is deemed to be included in the current
     Cumberland County Sheriff's Department Employees bargaining unit.
     
           5.  The County of Cumberland is the public employer, within the
     meaning of 26 M.R.S.A. Section 962(7), of all of the employees whose
     job classifications presently constitute the Cumberland County
     Sheriff's Department Employees bargaining unit and including the
     Officer Friendly position.
     
           6.  The primary work responsibilities of the positions sought
     to be included in the proposed bargaining unit, with the exception
     of the Officer Friendly position, are the enforcement of Title 17-A
     (the Maine Criminal Code) and Title 29 (the Maine motor vehicle laws)
     of the Maine Revised Statutes. Said enforcement responsibilities
     are discharged through rural patrol, making traffic stops, investi-
     gating reports of criminal violations and investigating motor vehicle
     accidents.
     
           7.  The work responsibilities of the other positions in the
     current bargaining unit can be described as falling within one of
     two general areas: (1) the detention of prisoners and support
     services therefor and (2) the provision of support services for the
     personnel sought to be included in the proposed bargaining unit.
     The work duties and responsibilities of the former group primarily
     involve the incarceration of inmates at the county jail, providing
     security at that facility, and serving the needs of the prisoners
     interned thereat. Included in said former group are the following
     classifications: detention officers, intake officers, medics,
     recreation officer, work release officer, cooks, transportation
     officer, and jail social worker. The work duties and responsibilities
     of the latter group include dispatching, record maintenance, and
     vehicle repair. The latter group includes the following classifi-
     cations: dispatchers, records director, records clerk, crime
     analyst, court officer, and mechanic.
     
           8.  The Officer Friendly position is a relatively new classi-
     fication whose work duties include making appearances in schools,

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     educating students in law enforcement-related topics, and engendering
     a positive relationship between the youngsters and law enforcement
     personnel.
     
           9.  The labor relations policies for all of the employees in
     the current bargaining unit were, prior to the advent of collective
     bargaining, determined by the Cumberland County Commissioners.
     Subsequent to certification of the incumbent bargaining agent, the
     labor relations policies for all of the employees in the current
     bargaining unit have been determined through collective negotiations
     between said Commissioners and Council 74.
     
           10. The Sheriff of Cumberland County is responsible for the
     operation of the Cumberland County Sheriff's Department and for the
     supervision of all of its employees. The Department is, however,
     divided into three major divisions: the Police Services Division,
     under the supervision of the Chief Deputy Sheriff; the Administrative
     Services Division, supervised by the Finance Director; and the
     Detention Services Division, overseen by the Jail Administrator.
     With the exception of the Officer Friendly position, which is in the
     Administrative Services Division, all of the positions sought to be
     included in the proposed bargaining unit are in the Police Services
     Division.
     
           11. All employees in the current bargaining unit are paid on
     an hourly basis, based on a forty-hour work week. The actual wages
     received by the employees are based upon their classification's wage
     scale, the individual's longevity prior to ratification of the
     collective bargaining agreement, and an across-the-board wage
     increase granted by said agreement.
     
          12.  The employees sought to be included in the proposed bar-
     gaining unit work a non-standard work week and they are the only
     unit employees who receive an 11% differential therefor. Patrol
     Deputies work a fifty-hour work week and are on-call for ten hours
     each week. Detectives work a forty-five hour work week and are on-
     call for fifteen hours each week.
     
          13.  All employees in the current bargaining unit enjoy the same

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    benefits, such as vacation leave, medical and hospitalization insurance
    sick leave, bereavement leave, and unpaid leave of absence.
    
          14.  All of the employees in the current bargaining unit, except
     for the employees mentioned in paragraph 12 above and except for one
     cook, work forty hours per week on definite shifts. The cook works
     an odd schedule; however, he does not receive the 11% differential
     mentioned in paragraph 12.
     
          15.  All of the employees in the current bargaining unit are
     issued the same uniform. In addition thereto, the employees sought
     to be included in the proposed bargaining unit are also issued a
     pistol, gun leather, a flashlight, manacles, a baton, and, if requested
     by the individual, a bullet-proof vest. Other employees who are issued
     this same equipment are the transportation officer, the court house
     security officer, and the Brunswick District Court officer.
     
          16.  All of the employees sought to be placed in the proposed
     bargaining unit must, within their first year of employment and as
     a condition thereof by Statute, attend the Basic Training Course
     offered by the Maine Criminal Justice Academy. Detention officers
     are required, within their first year of employment and as a condition
     thereof by Statute, to attend the shorter 80 hour corrections training
     program offered by the Maine Criminal Justice Academy. In addition
     thereto, detention officers must receive 20 hours of in-service
     training, annually. All of the other bargaining unit employees
     have received training in their particular work areas and have
     developed skills relevant thereto.
     
          17.  The employees sought to be placed in the proposed bargaining
     unit have rare professional contact or interchange with the other
     employees in the current bargaining unit. For example, the patrol
     deputies only professional contact with the corrections personnel
     occurs when the former transport an arrestee to the county jail.
     
          18.  The employees in the positions sought to be included in the
     proposed bargaining unit perform their work patrolling roads through-
     out the County, interviewing witnesses or others away from the
     Sheriff's Department, and investigating accidents and crime scenes.

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     Other than the aforementioned employees and the court officers, who
     are each assigned to and work at Brunswick District Court, Bridgton
     District Court, Portland District Court, or Cumberland County Superior
     Court, all of the other employees in the present bargaining unit work
     at or report to the Sheriff's Department office.
     
          19.  The patrol deputies and corporals are assigned to definite
     geographic patrol zones and each must, as a condition of employment,
     reside within the bounds of his/her patrol area. The patrol sergeants
     and lieutenant, detectives, and detective sergeants have assigned duty
     areas; however, said individuals need not be domiciled within their
     designated areas.
     
          20.  The current Cumberland County Sheriff's Department Employees
     bargaining unit was created by the filing of an Agreement on Appro-
     priate Bargaining Unit, dated December 14, 1981. The parties who
     entered into said agreement were Council 74, the Cumberland County
     Sheriff's Department Association, and the Cumberland County Commission.
     The contents of said bargaining unit agreement were incorporated by
     reference into Article I of the August 9, 1982 - December 31, 1983
     collective bargaining agreement between Council 74 and the Cumberland
     County Commissioners for the current bargaining unit.
     
          21.  The Cumberland County Sheriff's Department Association was
     a voluntary association whose membership was open to all employees,
     including the Sheriff, of the Cumberland County Sheriff's Department.
     Said Association was primarily a benevolent organization from which
     employees could borrow money in time of need and which sent flowers
     to employees who were hospitalized.
     
          22.  The collective bargaining agreement cited in paragraph 20
     above is the only such agreement ever negotiated for the current
     bargaining unit. There are no special provisions in said agreement
     primarily for the benefit of the employees whose severance is sought.
     
          23.  One patrol deputy was on the union bargaining team which
     negotiated the collective bargaining agreement mentioned in paragraph
     20 hereof.  Subsequent to the ratification of said agreement, the
     employees whose severance is sought were represented by a shop steward.

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          24.  Negotiations are presently underway, between Council 74 and
     the Employer, for a successor collective bargaining agreement to that
     noted in paragraph 20, supra. One patrol deputy is a member of the
     current union bargaining team and several bargaining proposals solely
     for the benefit of patrol deputies have been presented at the bar-
     gaining table, during the negotiations for the successor collective
     bargaining agreement. The patrol deputies are the only group of
     employees, within the current bargaining unit, on whose behalf
     unique bargaining proposals have been presented.
     
          25.  The two patrol deputies, who appeared as witnesses before
     the hearing examiner, expressed a desire to be included in a law
     enforcement bargaining unit, separate and distinct from the current
     bargaining unit.
     
          26.  Under the status quo, the bargaining agent, Council 74,
     represents a single bargaining unit composed of all of the public
     employees, within the definition of 26 M.R.S.A. Section 962(6), of
     the Cumberland County Sheriff's Department.
     
          27.  The employer's organizational structure is described briefly
     in paragraph 10 hereof.  In addition to the employees whose severance
     is being sought, the other groups of employees included in the Police
     Services Division are:  records (including crime analysis) , communi-
     cations, mechanical services, and judicial services. The Administrative
     Services Division consists of the Finance Director, the Administrative
     lieutenant, and Officer Friendly.  The Detention Services Division
     includes two major groups of employees:  (1) security (detention,
     intake, and maintenance employees) and (2) support services (counseling
     medical services, recreation, work release, food services, and trans-
     port services employees).
     
          28.  The total number of employees sought to be included in the
     proposed bargaining unit is 25.  The number of employees currently
     serving in each of the classifications at issue is included in
     parentheses in the following list:

               Officer Friendly     (1)   Patrol Lieutenant       (1)
               Patrol Deputy       (13)   Patrol Sergeant         (1)

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               Detective            (4)   Patrol Corporal         (3)
               Detective Sergeant   (1)   Part-time Patrol Deputy (1)
     
     There are, at present, a total of 96 employees, including the 25 above,
     in the Cumberland County Sheriff Department Employees bargaining unit.
     
          29.  During the course of the hearing, Local 48 and Council 74
     agreed that the proposed bargaining unit should be severed from the
     existing unit. The Employer's representative stated that the Employer
     was unable to agree with the proposed severance and the hearing
     continued.
     
     
                                   DECISION
     
           The hearing examiner found, among other things, that six law
     enforcement positions in the existing bargaining unit--the patrol
     deputy, detective, detective sergeant, patrol lieutenant, patrol
     sergeant, and patrol corporal---do not share a clear and identifiable
     community of interest with the other positions in the unit, and
     ordered that the six positions be severed from the existing unit and
     included in a separate law enforcement bargaining unit.[fn]1  The existing
     unit, created by agreement between Council 74, the County, and the
     Cumberland County Sheriff's Department Association in November, 1981,
     was composed of most of the job classifications in the Cumberland
     County Sheriff's Department, including in addition to the law enforce-
     ment positions such positions as detention officer, medic, work release
     _______________
     
           1 26 M.R.S.A.  966(2)(Supp. 1983) sets forth the community of
     interest requirement:
     
              Bargaining unit compatibility.  The executive director
           of the Board or his designee shall decide in each case
           whether, in order to insure to employees the fullest
           freedom in exercising the rights guaranteed by this
           chapter and in order to insure a clear and identifiable
           community of interest among employees concerned, the
           unit appropriate for purposes of collective bargaining
           shall be the public employer unit or any subdivision
           thereof. No unit shall include both professional and
           nonprofessional employees unless a majority of such
           professional employees vote for inclusion in such unit,
           except that teachers may be included in a unit con-
           sisting of other certificated employees.

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     officer, cook, jail social worker, dispatcher, court officer, and
     mechanic. Council 74 appeals from the decision to sever the positions
     from the existing bargaining unit.
     
           Council 74 first contends that the hearing examiner erred in
     Finding of Fact No. 29 by stating that during the course of the
     hearing Council 74 agreed that the proposed unit should be severed
     from the existing unit. This erroneous finding then influenced the
     community of interest determination, Council 74 urges. The evidence
     presented to us shows that during a recess in the hearing below,
     Local 48 and Council 74 representatives discussed outside the hearing
     room the possibility of settling the case. This discussion continued
     in the hearing room in the presence of the hearing examiner, with
     Local 48 offering to withdraw its severance petition if the other
     parties agreed to split the existing unit into two bargaining units.
     John J. Ezhaya, representing Council 74 at the hearing, stated that
     he would agree to sever the unit but that the matter was up to the
     County. The County's representative stated that she could not agree
     to break up the existing unit, and the hearing examiner ordered that
     the hearing continue.
     
           Since Finding of Fact No. 29 accurately reflects this sequence
     of events, there was no error. There is no indication that the
     hearing examiner misunderstood Council 74's ultimate position, for
     on the very next page following Finding of Fact No. 29 he stated
     Council 74's position was that the petition should be dismissed and
     accurately noted the grounds raised by Council 74 in support of its
     position. The remainder of the report then discusses the points
     raised by Council 74 and the other parties. In addition, as discussed
     infra, there is no indication that the finding regarding Council 74's
     agreement to settle the case improperly colored the determination
     regarding the lack of community of interest between the two groups
     of employees. We therefore find no error either in the making or
     the application of Finding of Fact No. 29.
     
           Council 74 also asserts that the remaining findings of fact,
     none of which are disputed, cannot support the hearing examiner's
     conclusion that the law enforcement positions do not share a clear

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     and identifiable community of interest with the other positions in
     the unit. The only rational conclusion which can be drawn from
     these facts, Council 74 urges, is that the employees share a clear
     community of interest. The standard we apply in our review of
     bargaining unit determinations has been stated in many cases:
     "We will overturn a hearing examiner's rulings and determinations
     if they are 'unlawful, unreasonable, or lacking in any rational
     factual basis.'" City of Bath and Local 1828, Council 74, AFSCME,
     MLRB No. 81-A-01 at 6 (Dec. 15, 1980), quoting Teamsters Local 48
     and City of Portland, MLRB Report of Appellate Review at 6 (Feb. 20, 1979).  
     Our task thus is not to substitute our judgment for the
     hearing examiner's, but instead to review the facts to determine
     whether the hearing examiner's decisions are rationally supported.
     See, e.g., Town of Yarmouth and Teamsters Local 48, MLRB No. 80-A-04
     at 4-5 (June 16, 1980); AFSCME, Council 74 and City of Bangor, MLRB
     No. 79-A-01 at 4 (Oct. 17, 1979).
     
           We find that the hearing examiner's community of interest
     conclusion is reasonable and rational. The hearing examiner noted
     that while some facts showed certain similarities between the two
     groups of employees, the following facts justified severance of
     the law enforcement positions from the bargaining unit: the patrol
     officers and detectives are the only employees whose primary job is
     enforcement of criminal and motor vehicle laws; these employees are
     under the common supervision of the Chief Deputy Sheriff; they are
     the only employees paid an 11% differential for working a non-standard
     work week; they are issued firearms, batons and other unique equip-
     ment; they are the only employees required to attend the Basic
     Training Course at the Maine Criminal Justice Academy; they have
     infrequent professional contact with the other unit employees; and
     they are the only employees, with the exception of the court officers,
     whose primary work location is outside the Sheriff's Department office.
     In addition, the hearing examiner noted that historically law enforce-
     ment positions have been placed in separate bargaining units in order
     to avoid conflicting loyalties during periods of labor unrest.
     
           All of these findings are based on evidence in the record. The
     facts upon which the hearing examiner relied are among the pertinent

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     factors which this agency has utilized in community of interest
     determinations for years,[fn]2 and the community of interest standard is
     the correct standard to be applied in severance cases. See, e.g.,
     Teamsters Local 48 and State of Maine, MLRB No. 84-A-02 at 3-4
     (April 2, 1984).  The hearing examiner's conclusion regarding the
     lack of community of interest between the two groups of employees
     therefore is rational.  Particularly since the hearing examiner
     applied the correct standard and relied on pertinent considerations
     which are supported by the record, we see no indication that the
     finding regarding Council 74's settlement agreement had any signi-
     ficance in the community of interest determination. Since the
     hearing examiner's findings are free from error and are rationally
     based on the facts, they are entitled to stand.[fn]3  We will dismiss
     Council 74's appeal, affirm the hearing examiner's report, and order
     the executive director to conduct a representation election for the
     law enforcement bargaining unit as soon as practical. Since Council
     74 currently is the bargaining agent for the employees in the law
     enforcement unit, its name along with Local 48's and the "no repre-
     sentative" choice must appear on the election ballot.
     _______________
     
           2 We have outlined the pertinent community of interest criteria
     on many occasions:
     
           (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) geographic prox-
           imity; (8) history of collective bargaining; (9) desires
           of the affected employees; (10) extent of union organi-
           zation; and (11) the public employer's organizational
           structure."
     
     AFSCME, Council 74 and City of Bangor, MLRB No. 79-A-01 at 3-4.
     
     
           3 Council 74 also alleged that the hearing examiner erred by
     refusing to admit a document into the record. Since the record
     shows that this document was never offered as an exhibit, however,
     there was no error.

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                                     ORDER
     
           On the basis of the foregoing findings of fact and discussion,
     and by virtue of and pursuant to the powers granted to the Maine
     Labor Relations Board by 26 M.R.S.A.  964 (4) (Supp. 1983), it is
     ORDERED:
     
               1.  Council 74, AFSCME's appeal of the March 16,
                   1984 Unit Determination Report is denied.
     
               2.  All findings and conclusions in the Unit
                   Determination Report are affirmed. The
                   Cumberland County Law Enforcement bargain-
                   ing unit is composed of all full-time and
                   regular part-time employees in the follow-
                   ing job classifications: Patrol Deputy,
                   Detective, Detective Sergeant, Patrol
                   Lieutenant, Patrol Sergeant, and Patrol
                   Corporal.
     
               3.  The Executive Director shall conduct a
                   representation election for the members
                   of the Cumberland County Law Enforcement
                   bargaining unit as soon as practical.
     
     Dated at Augusta, Maine this 25th day of April, 1984.
     
                                       MAINE LABOR RELATIONS BOARD
     
     
     
                                       /s/________________________
     The parties are advised of        Sidney W. Wernick
     their right to seek review        Chairman
     of this report by the            
     Superior Court by filing
     a complaint pursuant to
     26 M.R.S.A.  968(4)             /s/________________________
     (Supp. 1983) and 972(1974)        Thacher E. Turner
     and in accordance with            Employer Representative
     Rule 80B of the Rules of
     Civil Procedure within
     30 days of the date of
     this decision.                    /s/________________________
                                       Harold S. Noddin
                                       Employee Representative

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