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
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[-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.
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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).
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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 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.
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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.
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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.
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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.
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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.
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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
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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."
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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."
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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.
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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
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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
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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
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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
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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-
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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:
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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.
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