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 [-1-] ___________________________________________________________________________ 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). -2- ______________________________________________________________________ 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, -3- ___________________________________________________________________________ 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 -4- ___________________________________________________________________________ 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. -5- ___________________________________________________________________________ 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. -6- ___________________________________________________________________________ 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) -7- ___________________________________________________________________________ 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. -8- ___________________________________________________________________________ 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 -9- ___________________________________________________________________________ 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 -10- __________________________________________________________________________ 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. -11- ___________________________________________________________________________ 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 -12- ___________________________________________________________________________