Teamsters and Cumberland County and AFSCME, No. 84-UD-11, March 16, 1984, affirmed by 84-A-04. STATE OF MAINE MAINE LABOR RELATIONS BOARD [Case No. 84-UD-11] _________________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) STATE, COUNTY, MUNICIPAL AND ) UNIVERSITY EMPLOYEES, ) ) Petitioner, ) ) and ) ) COUNTY OF CUMBERLAND, ) UNIT DETERMINATION REPORT ) Employer, ) ) and ) ) COUNCIL NO. 74, AMERICAN ) FEDERATION OF STATE, COUNTY ) AND MUNICIPAL EMPLOYEES, ) AFL-CIO, ) ) Certified Bargaining Agent. ) _________________________________) This unit determination proceeding was initiated on October 26, 1983 when Teamsters Local Union No. 48 ("Local 48") filed a petition for appropriate unit determination, pursuant to Title 26 M.R.S.A. Section 966. A hearing on the petition was conducted by the undersigned hearing examiner for the Maine Labor Relations Board ("Board"), on February 16, 1984, in Room 113, first floor, State Office Building, Augusta, Maine. Local 48 was represented at the hearing by its Secretary-Treasurer, Walter J. Stilphen, Jr., who was assisted by Organizer/ Business Agent David L. Berg. The currently certified bargaining agent for the Cuinberland County Sheriff's Department Employees bargaining unit, Council No. 74, American Federation of State, County and Municipal Employees, AFL-CIO ("Council 74"), was represented by its Director of Field Services, John J. Ezhaya, who was assisted by Field Representative Richard Taylor. The County of Cumberland ("Employer") appeared and was represented at the hearing by Management Consultant Annalee Z. Rosenblatt. Local 48's petition seeks to carve out a law enforcement bargaining unit from the existing Cumberland County Sheriff's Department Employees bargaining unit. The proposed bargaining unit would consist of the following positions: Patrol Deputy, Detective, Detective Sergeant, Patrol Lieutenant, Patrol Sergeant, Patrol _________________________________________________________________________________________ [-1-] Corporal, and Officer Friendly, including part-time employees in some or all of foregoing classifications. Local 48 urges the granting of its petition on the grounds that the employees in the proposed bargaining unit share a clear and identi- fiable community of interest and that said employees do not share a community of interest with the other employees in the present bargaining unit. Both Council 74 and the Employer oppose Local 48's petition on the grounds that: (1) all of the employees in the current bargaining unit share a clear and identifiable community of interest, therefore, said unit is appropriate for collective bargaining pur- poses and (2) creation of the separate unit would be contrary to the Board's policy of discouraging the proliferation of small bargaining units through fragmen- tation. At the outset of the hearing, each party made an opening statement, outlining its position herein. Through the diligent effort and cooperation of all parties, the hearing examiner was able to ascertain those areas where no issues of fact existed and the factual areas which were in dispute. The parties were then able to focus their inquiries upon the latter. Local 48 presented the following witnesses: Eric C. Marston Patrol Deputy, Cumberland Sheriff's Department Warren J. Manchester Patrol Deputy, Cumberland Sheriff's Department Council 74 presented the following witness: Rocco S. Minervino Director of Food Services, Cumberland Sheriff's Department and President, Local 1828, Council 74, AFSCME The Employer presented no witnesses at the hearing. The following documents were admitted into the record: County Exhibit No. 1 Organizational Chart of the Cumberland County Sheriff's Department Joint Exhibit No. 1 Collective Bargaining Agreement for Cumberland County Sheriff's Department Employees bargaining unit, between the Employer and Council 74, effec- tive August 9, 1982 through December 31, 1983 The parties were afforded full opportunity to examine and cross-examine witnesses, to present evidence, and to make argument. -2- ___________________________________________________________________________________ JURISDICTION Teamsters Local Union No. 48 is a labor organization engaged in the business of organizing and representing public employees for purposes of collective bargain- ing, within the meaning of the Municipal Public Employees Labor Relations Act ("Act"), 26 M.R.S.A. Section 961, et seq., Council No. 74, American Federation of State, County and Municipal Employees, AFL-CIO, is the certified bargaining agent, within the definition of Section 962(2) of the Act, for the current Cumberland County Sheriff's Department Employees bargaining unit. 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 Section 962(6) of the Act. The County of Cum- berland is the public employer, within the meaning of Section 962(7) of the Act, of all of the employees whose job classifications presently constitute the Cumber- land County Sheriff's Department Employees bargaining unit and including the Officer Friendly position. The jurisdiction of the hearing examiner to hear this matter and to make an appropriate unit determination herein lies in 26 M.R.S.A. Section 966. FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. Teamsters Local Union No. 48 is a labor organization engaged in the busi- ness of organizing and representing public employees for purposes of collective bargaining, within the meaning of the Municipal Public Employees Labor Relations Act, Title 26 M.R.S.A. Section 961, 2. Council No. 74, American Federation of State, County and Municipal Em- ployees, AFL-CIO, is the certified bargaining agent, within the definition of 26 M.R.S.A. Section 962(2), for the current Cumberland County Sheriff's Depart- ment Employees bargaining unit. 3. All employees, whose job classifications presently constitute the Cumber- land 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). -3- _________________________________________________________________________________________ 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 bar- gaining 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 posi- tion, 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, investigating reports of criminal violations, and investigating motor vehicle accidents. 7. The work responsibilities of the other positions in the current bar- gaining 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 inthe 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: deten- tion 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 classifications: dispatchers, records director, records clerk, crime analyst, court officer, and mechanic. 8. The Officer Friendly position is a relatively new classification whose work duties include making appearances in schools, educating students in law enforcement-related topics, and engendering a positive relationship between the youngsters and law enforcement personnel. -4- ___________________________________________________________________________________ 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 laborrelations 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 bargaining 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 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. -5- ___________________________________________________________________________________ 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 therof 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 throughout the County, inter- viewing witnesses or others away from the Sheriff's Department, and investigating accidents and crime scenes. 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. -6- ___________________________________________________________________________________ 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 Appropriate 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 1 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. Subse- quent to the ratification of said agreement, the employees whose severance is sought were represented by a shop steward. 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 bargaining 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. -7- ___________________________________________________________________________________ 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 additthn to the employees whose severance is being sought, the other groups of employees included in the Police Services Division are: records (including crime analysis), communications, 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 serices, recreation, work release, food services, and transport 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) 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. -8- ___________________________________________________________________________________ DECISION The issue before the hearing examiner is whether a group of job classi- fications of Cumberland County Sheriff's Department employees should be severed from the existing Cumberland County Sheriff's Department Employees bargaining unit to form a Cumberland County Law Enforcement bargaining unit. The positions sought to be included in the proposed bargaining unit are as follows: Patrol Deputy, Patrol Corporal, Patrol Sergeant, Patrol Lieutenant, Detective, Detective Sergeant, Officer Friendly, and including regular part-time employees in some or all of the foregoing classifications. Local 48 urges adoption of the petition on the grounds that, although sharing a clear and identifiable community of interest with each other, the classifications proposed for severance lack a community of interest with the other positions in the current bargaining unit. Council 74 and the Employer aver that the petition should be dismissed because: (1) all of the classifications in the current bargaining unit share a clear and identifiable community of interest and (2) the Board's policy against the proliferation of small bargaining units through fragmenta- tion mandates such a result. The Employer alleges that a recent hearing examiner unit determination report, that in the case of Teamsters Local Union No. 48 and State of Maine (Institutional Services Unit) and Council No. 74, AFSCME and Maine State Employees Association, January 10, 1984 [No. 83-UD-25] (hereafter "Institu- tional Services Unit Report"), is controlling herein and that decision requires dismissal of the petition in this proceeding. Since this last allegation relates to the controlling legal principles in this dispute, it will be addressed first below. The Institutional Services Unit Report, at 10-11, did set forth the controlling legal standard to be applied in severance cases such as this one. The hearing Examiner stated: "[T]he Labor Relations 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 12-23 (July 10, 1981)[No. 81-UD-10]. Accompanying Local 48's unit determination petition was its petition for election supported -9- ___________________________________________________________________________________ by an adequate showing of interest by Corrections employees. The unit determination petition therefore properly raises the severance question and the criteria set forth in Section 979-E (2) will be applied in this case." Idem., (footnote omitted). As was the case in the Institutional Services Unit matter, Local 48's petition for unit determination herein was filed together with a petition for election, supported by an adequate showing of interest by employees of the proposed Cumberland County Law Enforcement bargaining unit. Title 26 M.R.S.A. Section 966(2) is the provision in the Act which is parallel to the section of the State Employees Labor Relations Act cited by the hearing examiner above. The provisions of Section 966(2) of the Act will, therefore, consistent with the Institutional Services Unit Report, control the outcome of this proceeding. Section 966(2) provides that a bargaining unit is appropriate, for purposes of collective bargaining, if the employee classifications involved share a clear and identifiable community of interest. Within the context of the present inquiry, retention of the positions at issue in the current bargaining unit or the creation of the proposed unit through severance will turn on whether the required community of interest exists between the classifications in contention and the other positions in the present unit. Should such community of interest be weak or absent, the presence or absence of a clear and identi- fiable community of interest among the positions at issue will determine whether the proposed unit is an appropriate one. The Labor Relations Board has often stated that the evaluation of the presence or absence of a "clear and identifiable community of interest" turns on the examination of eleven relevant factors. Said criteria are as follows: "(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 proximity; (8) history of collective bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organi- zational structure." -10- ___________________________________________________________________________________ Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, at 3-4 (Oct. 17, 1979); Auburn Firefighters Association, Local 797, IAFF and City of Auburn, MLRB No. 83-A-07, at 5-6 (Dec. 5, 1983). As is reported below, the hearing examiner has carefully considered each of the foregoing factors, together with all of the arguments advanced by the parties, and has concluded: (1) all but one of the employee classifications at issue do not share a clear and identifiable community of interest with the other positons in the current Cumberland County Sheriff's Department Employees bargaining unit and (2) the job classifications in contention, with the exception of the Officer Friendly position, do share a clear and identifiable community of interest and, to- gether, constitute an appropriate unit for the purpose of collective bargaining. Local 48's petition for bargaining unit determination, with the exception of the amendment thereto presented at the hearing herein, will, therefore, be granted and the proposed Cumberland County Law Enforcement bargaining unit, less the Officer Friendly position, will be ordered severed from the existing Cumberland County Sheriff's Department Employees bargaining unit. 1. Similarity in the kind of work performed. The facts relevant to this factor are found in paragraphs numbered 6, 7, and 8 of the foregoing findings of fact. The relevant facts clearly establish that the patrol officers and detectives, including the ranked officers and detectives, are the only employees in the current bargaining unit whose primary duties and responsi- bilities involve direct enforcement of the criminal and motor vehicle laws. The performance of law enforcement duties has special significance in the labor relations context. The Executive Director, in the original Unit Deter- mination Report which created the appropriate bargaining units for State Employees, stated: "Petitioner - Intervenor Maine State Troopers Association has cited compelling rationale for a separate state police bargain- ing unit when it refers to state and national precedents else- where in the United States and makes particular reference to the Taft-Hartly amendments to the National Labor Relations Act which are intended to insure plant-protection employees in the time.of labor unrest. The hearing examiner believes it desirable to establish this separate bargaining unit in such a way to avoid conflicting loyalties during periods of labor unrest or acts violative of Section 979-C of the State Employees Labor Relations Act." -11- ___________________________________________________________________________________ State Employee Bargaining Units, Unit Determination Report [Case No. 75-UD-04], at 13 (Sept. 22, 1976). The same considerations noted above, concerning security and possibly-divided loyalties during periods of labor unrest, apply to the situation now under consideration. Those employees involved in the detention of prisoners and in related support services provide security at the jail and serve the prisoners' needs by furnishing food, medical care, recreation, transportation, counseling, and employment assistance. All of these duties relate to corrections and not to the enforcement of the above-noted statutes. Those employees who provide support services to the patrol officers and detectives; including radio dispatching, records maintenance, and vehicle repair; are much more closely related to the law enforcement functions. These responsibilities are often undertaken by civilian personnel in municipal police departments and are not directly law enforcement functions. The Officer Friendly position does not involve enforcement of the criminal statutes or the motor vehicle laws. The main functions of this position, education and public relations, are at most incidental functions of the patrol officers' duties. 2. Common supervision and determination of labor-relations policy. The facts pertinent to this consideration are found in paragraphs numbered 9 and 10 of findings of fact, supra. The labor-relations policies for all employees in the current bargaining unit have been determined, through a negotiated collective bargaining agreement, by Council 74 and the Employer. To the extent that the negotiated collective bargaining agreement is not inconsistent therewith, the pre-existing personnel policy controls the labor- relations policies for all of the current unit's employees. Although ultimately under the supervision of the Sheriff, the Department is divided into three divisions with each supervised by a separate individual. With the exception of the Officer Friendly position, all of the classifications sought to be included in the proposed bargaining unit are in the Police Services Division, under the supervision of the Chief Deputy Sheriff. The Officer Friendly classification is in the Administrative Services Division, supervised by the Finance Director. -12- ___________________________________________________________________________________ 3. Similarity in the scale and manner of determining earnings. The data concerning this criterion is located in paragraphs 11 and 12 of the above findings of fact. All of the current unit employees are paid on an hourly basis, based on a forty-hour work week. The patrol officers and detectives; however, are the only employees who receive an 11% wage differ- ential for working a non-standard work week. 4. Similarities in employment benefits, hours of work, and other terms and conditions of employment. The facts relevant to this factor are noted in paragraphs 12, 13, 14 and 15 of the findings of fact, supra. All of the employees in the current bargaining unit have identical fringe benefits. There is, however, a significant difference between the patrol officers and detectives, as a group, and all other unit employees in the length of the work week. The patrol officers and detectives are the only unit employees who work a "non-standard" work week. The patrol officers work a fifty-hour week and are on-call for ten hours each week and the detectives work a forty-five-hour week and are on-call for fifteen hours each week. All other unit employees work forty hours per week, on definite shifts. Although all unit employees are issued the same uniform, the patrol officers and detectives receive a good deal of additional equipment, including firearms. The neces- sity of this special equipment emphasizes the difference between this group of employees' job functions and those of most of the other employees in the current bargaining unit. 5. Similarities in the qualifications, skills and training of employees. The facts pertinent to this consideration are found in paragraph 16 of the findings of fact, supra. Two groups of bargaining unit employees must, as a condition of employment under the statutes of the State of Maine, attend and successfully complete courses of study conducted by the Maine Criminal Justice Academy. The corrections officers must attend the two-week corrections training program, within their first year of employment, and must receive 20 hours of in-service training each year thereafter. The patrol officers and detectives must attend, again within their first year of employment, the more rigorous and longer Basic Training Course. The Officer Friendly position must be filled by a Basic Training Course graduate. Although all unit employees have received -13- ___________________________________________________________________________________ training in their particular work areas, none apparently has similar minimum training requirements, as a condition of employment. Required attendance at the longer Basic Training Course is indicative of the difference between the jobs performed by the corrections officers and those of the patrol officers and detectives. 6. Frequency of contact or interchange among the employees. The data concerning this criterion is located in paragraph 17 of the foregoing findings of fact. The patrol officers have rare professional contact with the corrections officers. 7. Geographic proximity. The facts relevant to this factor are cited in paragraph 18 of the findings of fact. Other than the court officers noted in said paragraph, the patrol officers and detectives are the only bargaining unit employees whose primary work site is somewhere other than the Sheriff's Department office. 8. History of collective bargaining. The facts pertinent to this consi deration are noted in paragraphs 20, 21, 22, 23 and 24 of the above findings of fact. As was indicated in the Institutional Services Unit Report, supra, at 13-15, this factor is very important in considering severance petitions. The hearing examiner stated: "The adequacy of representation by the incumbent bargaining agent is an important factor in the NLRB's consideration of severance petitions. See, Bendix Corp., 227 NLRB 1534, 1537-38 (1977); Beaunit Corp., 224 NLRB 1502, 1504-5 (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 inadequately representing that unit based on that fact alone.' Firestone Tire and Rubber Co., 223 NLRB 904, 906 (1976). A number of factors are considered, including whether members of the proposed unit have participated in the affairs of the incumbent union by acting as stewards and bar gaining 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." Ibid., at 14. The evidence in the instant proceeding did not establish that the quality ofrepresentation, accorded to all current unit employees by the certified bargaining agent, has been less than adequate. The employee -14- ___________________________________________________________________________________ classifications sought to be severed were represented by one member of the initial union bargaining team, which negotiated the August 9, 1982 - December 31, 1983 collective bargaining agreement. Some evidence was presented that one or more proposals, uniquely for the benefit of the patrol officers, were presented in said first round of negotiations, however, none of those provisions were incorporated into the resulting collective agreement. Sub- sequent to the ratification of said agreement, the patrol officers and detec- tives were and continue to be represented by a union shop steward. One patrol deputy is now serving on the union bargaining team, which is currently negotia- ting with the Employer for a successor collective bargaining agreement. During the current round of bargaining, several bargaining proposals, solely for the benefit of patrol officers have been presented as part of Council 74's package at the bargaining table. The patrol deputies are the only group of employees, within the current bargaining unit, on whose benefit unique bargaining proposals have been presented. This last fact indicates that at least the patrol officers have separate and distinct interests from the other employees in the current bargaining unit. Although the above analysis militates toward a ruling against severance, since the employee classifications at issue have been adequately represented by the current bargaining agent; other facts relevant to the bargaining history of the current unit should be examined at this juncture . Two such facts, which are significant, are the length of the bargaining history and the means by which the unit was created. The current unit was created on December 14, 1981 and has, therefore, only been in existence for 2 1/4 years. This relatively short bargaining history undercuts the significance of this factor, in the overall community of interest inquiry in this matter. Secondly, the current bargaining unit was created by agreement of the parties who were interested therein at the time of said creation: Council 74, the Cumberland County Sheriff's Department Association, and the Employer. A unit which is created by a unit determination hearing and report is one where all of the relevant evidence was received, reviewed, and resulted in an impartial determination of one or more appropriate bargaining units. The hearing officer's conduct and result are guided by the paramount standard of community of interest. A unit, such as that involved herein, which is formed by agreement of the parties, is one which is born from the give-and-take of negotiations. Such negotiations -15- ___________________________________________________________________________________ often involve not only the best interests of the employees affected but also the interests of the negotiating parties themselves, such as the relative effort and expense to the parties of negotiating and administering agreements for a single unit versus the same for several units. Since the community of interest, present or absent, among all current unit employees has never been examined by any agent of the Board, the present inquiry is a matter of first impression herein. The collective bargaining history in this matter is not, therefore, as compelling as it might be in other instances. 9. Desires of the affected employees. The data concerning this criterion is located in paragraph 25 of the findings of fact above. The two patrol deputies, who gave testimony in this proceeding, favor being placed in a separate law enforcement unit for purposes of collective bargaining. No general concensus of opinion concerning severance or non-severance can be inferred from these two expressions of personal opinion. 10. Extent of union organization. The extent of the organizations of the unions in this matter is not persuasive either for or against severance. Council 74's organization is far more extensive; however, they currently repre- sent the wall-to-wall unit and Local 48 is seeking to represent the smaller proposed law enforcement unit. 11. Public Employer's organizational structure. The facts pertinent to this factor are noted in paragraphs 10 and 27 of the foregoing findings of fact. This factor, like the preceding one, has a neutral impact on the severance question. Although the Sheriff's Department is divided into three divisions, the current bargaining unit includes all of the Department's public employees, regardless of division. The Police Services Division, which includes all of the positions for which severance is sought except for the Officer Friendly classification, resembles a municipal police department in its composition. Following that analogy, the classifications at issue in said division, would be the uniformed officers in such a department. Conclusions on community of interest. The hearing examiner concludes that the following factors demonstrate that the patrol officers and detectives share a community of interest with each other and do not have a clear and identifiable community of interest with the other employees in the current bargaining unit. The patrol officers and detectives are the only unit employees -16- ___________________________________________________________________________________ whose primary job is the enforcement of the criminal and motor vehicle laws. All other unit employees, including Officer Friendly, either provide support services to the law enforcement personnel or do work related to the incarcer- ation of prisoners. The patrol officers and detectives are under the common supervision of the Chief Deputy Sheriff. The patrol officers and detectives are the only unit employees who are paid an 11% differential for working a non-standard work week. All unit employees, except for the patrol officers and detectives, work 40 hours per week, on definite shifts. The patrol officers work a 50 hour week and are on-call.for 10 hours each week and the detectives work 45 hours and are on-call 15 hours each week. The firearms, batons, and other equipment which is issued to the patrol officers and detec- tives, and to few other employees, is indicative of the unique nature of their jobs. The patrol officers, detectives, and Officer Friendly are the only unit employees required to attend the intensive Basic Training Course of the Maine Criminal Justice Academy, as a condition of employment. The patrol officers have rare professional contact with other unit employees. The patrol officers and detectives are, with the exception of the court officers, the only unit employees whose primary work location is outside of the Sheriff's Department office. The hearing examiner believes that the foregoing analysis mandates severance of the requested Cumberland County Law Enforcement bargaining unit, with the exception of the Officer Friendly posi- tion. This latter position, while having the same training as the patrol officers and detectives, shares a community of interest with the other employees in the current unit and will remain therein. Non-proliferation policy. The Labor Relations Board has set forth a policy of discouraging the proliferation of small bargaining units within a single department. Town of Yarmouth and Teamsters Local Union No. 48, MLRB No. 80-A-O4, at 4 (June 16, 1980). This policy, which is primarily aimed at avoiding One and two-member bargaining units, is based upon recog- nition of the fact that the employer, the bargaining agent, and the State all can spend the same amount of effort, money, and services dealing with a small unit as is expended for a much larger one. M.S.A.D. No. 14 and East Grand Teachers Association, MLRB No. 83-A-09, at 13 (Aug. 24, 1983). The bargaining unit being created herein presently consists of 24 employees in 6 job classi- -17- ___________________________________________________________________________________ fications. The hearing examiner concludes that such a sizeable unit should not be precluded by the Board's non-proliferation rule, especially since its creation is mandated by the foregoing community of interest analysis. The Employer's final argument was that the Institutional Services Unit Report, supra, should control the outcome of this matter and should result in denial of the severance request. As was noted at the outset of this discussion, the legal principles set forth in the Institutional Services Unit Report have been applied herein. The balance of the Employer's contention must, however, fail for several reasons. First, Section 966(2) of the Act requires that the unit determination decision be made in each case, depending upon the facts relevant thereto. Second, the change sought in the State unit case would, if granted, have had far-reaching significance for other State units. Finally and most significantly, the State unit had been involved in collective bargaining for several years, through two collective bargaining agreements. The unit here has been in existence for only 2 1/4 years and has had only one negotiated agreement. ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the provisions of 26 M.R.S.A. Section 966, the hearing examiner ORDERS: 1. That the Petition for Appropriate Unit Determination, filed by Teamsters Local Union No. 48 on October 26, 1983 and excepting therefrom the oral amendment thereto made on February 16, 1984, and seeking formation of a Cumberland County Law Enforcement bargaining unit for certain employees of the Cumberland County Sheriff's Department be and hereby is granted. 2. That the following classifications of employees of the Cumberland County Sheriff's Department, together, con- stitute an appropriate unit for collective bargaining purposes: -18- ___________________________________________________________________________________ Patrol Deputy Patrol Lieutenant Detective Patrol Sergeant Detective Sergeant Patrol Corporal Including regular part-time employees in some or all of the foregoing classifications. Dated at Augusta, Maine this 16th day of March, 1984. MAINE LABOR RELATIONS BOARD /s/________________________ Marc P. Ayotte Hearing Examiner The parties are advised of their right, pursuant to 26 M.R.S.A. Section 968(4), to appeal this report to the full Labor Relations Board by filing a notice of appeal with the Board within 15 days of the date of the report. -19- ___________________________________________________________________________________