STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 86-UD-02 Issued: October 17, 1985 ______________________________ ) TEAMSTERS LOCAL UNION NO. 48, ) ) Petitioner, ) ) and ) UNIT DETERMINATION REPORT ) TOWN OF LEBANON, ) ) Public Employer. ) ______________________________) This unit determination proceeding was initiated on August 15, 1985, pursuant to Section 966 of the Municipal Public Employees Labor Relations Act (Act), 26 M.R.S.A. 966 (Supp. 1984-85) and Maine Labor Relations Board (MLRB) Unit Determination Rule 1.03, when Teamsters Local Union No. 48 (the Teamsters) filed a petition for appropriate unit determination proposing, as appropriate for the purposes of collective bargaining, a unit of law enforcement employees of the Town of Lebanon, described: INCLUDED: Patrolmen. EXCLUDED: All other employees of the Town of Lebanon. Prior to opening the record on the originally-scheduled hearing date the undersigned Hearing Examiner postponed the hearing and extended to the parties, who had appeared at hearing without any wit- nesses possessing personal knowledge of the quotidian duties of the full-time and reserve patrolmen or those of the police administrator, the opportunity to produce competent witnesses and establish a factual basis against which to test the parties' contentions concerning an appropriate unit. Hearing of the issues raised by the unit deter- mination petition commenced at 9:30 a.m. on September 25, 1985, in the Bureau of Labor Standards Conference Room, located on the seventh floor of the State Office Building, in Augusta, Maine. Opening statements of the parties revealed their positions con- terming the appropriateness of the petitioned-for unit to be as [-1-] _________________________________________________________________ follows. The Town of Lebanon contends that the collective bargaining unit should include full-time and reserve patrolmen in addition to the reserve patrolman serving as police administrator. The Teamsters con- tend that only full-time patrolmen share a community of interest and that reserve patrolmen, including the reserve patrolman serving as police administrator, should be excluded from the proposed patrolman unit due to their express exclusion from the definition of the term "public employee" by paragraphs G and D respectively, of 26 M.R.S.A. 962(6) (Supp. 1984-85).[fn]1 The petitioning Teamsters Union was represented at the hearing by Teamsters Business Agent John A. Perkins; the City of Lebanon was repre- sented by Mark A. Kearns, Esquire. The following stipulations were reached by the parties in prehearing conference. 1. The Town of Lebanon is a public employer within the meaning of 26 M.R.S.A. 962(7) (Supp. 1984-85). 2. Teamsters Local Union No. 48 is a lawful organization which has as its primary purpose the representation of employees and which presently seeks to be designated as the exclusive collective bargaining agent of the law enforcement employees in the proposed unit, within the meaning of 26 M.R.S.A. 962(2) (Supp. 1984-85). 3. The employees who occupy the classification of patrolman are public employees within the meaning of 26 M.R.S.A. 962(6) (Supp. 1984-85). The undersigned Hearing Examiner's jurisdiction to conduct a unit determination hearing herein, and to issue a report thereof, lies in 26 M.R.S.A. 966 (Supp. 1984-85). The record was left open for seven days for the purpose of allowing the Town's attorney to file as an exhibit the Town of Lebanon _________________________ 1 The provision of the Municipal Public Employees Labor Relations Act which defines the term "public employee" states, in pertinent part: "Public Employee" means any employee of a public employer except any person . . . [w]ho is a department head or divi- sion head appointed to office pursuant. to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer; or . . . [w]ho is a temp- orary, seasonal or on-call employee. -2- ______________________________________________________________________ Police Department's standard operating procedure (SOP). The Town also agreed to supply the Teamsters with a copy of the SOP within the same time period, for the purposes of allowing the Teamsters to inspect same, to compare it with the filed copy and to raise objections thereto. The Teamsters object to the admissibility of the SOP, filed with the Board on October 3, 1985, because the filed copy does,not contain an amendment providing for the creation of the position of police administrator or specifying the duties of the position, and because they have not received a copy of the SOP The testimony amply establishes that an amendment relating to the police administrator exists. Accordingly, the SOP is not admitted into evidence. The Teamsters offered and the undersigned admitted into evidence the September/October Lebanon Police Department schedule. The Teamsters expressed their desire to participate in an election in any unit determined appropriate by the Hearing Examiner. All parties were afforded full opportunity to appear, to present testimonial and documentary evidence, to cross-examine witnesses and to orally argue. In accordance with their requests, the Teamsters made a closing statement and the Town filed a post-hearing brief on October 11, 1985. FINDINGS OF FACT The Town of Lebanon is governed by a three-member Board of Selectmen (Board), one member of which serves as Chairman of the Board. The Town of Lebanon employs only two non-law enforcement employees, a land-fill attendant who works Monday, Thursday, Friday, Saturday and Sunday, and a part-time secretary who works only during the Board's weekly meetings. The Lebanon Police Department has existed for nine years and presently consists of three full-time patrolmen (Donald Pray, Gary Prokey and Jeff Huston) and two reserves (James Wiswell and Charles Butler), although the Town employed three reserves at the date of the filing of the petition. Five additional reserves were anticipated to be sworn within one week of the hearing. The Town has always employed reserves as an integral part of the Department. The Department is dispatched through the York County -3- ______________________________________________________________________ Dispatch Center. The Department provides twenty-four hour police pro- tection to the Town's seven square miles with two patrol cars, one in use, occupied by a single patrolman, and the remaining vehicle used as a backup. There are never two patrolmen on duty at the same time. The patrolmen's minimal on-the-job interaction occurs at shift changes. The Town's previous Police Chief, Gordon Smith, resigned in the spring of 1985. There is normally a full-time chief of police in addition to three full-time patrolmen. The tenures of past chiefs have been brief. Due to the Board's perception that it had moved too quickly on several occasions in hiring replacement chiefs in the past, the Board, by resolve, unanimously appointed reserve patrolman James A. Wiswell to the temporary position of police administrator. The Lebanon Police Department's offices are located in the fire department building in East Lebanon, Maine. There are two rooms available to Lebanon Police Department personnel. Wiswell possesses a desk in one of these rooms which contains all the personnel records of the Department's employees. Only he and the Board have access to these records Wiswell is required to make certain unspecified entries on these records. There has never been a collective bargaining agent certified for any unit of the Town's employees. The Board anticipated the Administrator's employment to primarily be that of a reserve patrolman. The Board also anticipated the Administrator's duties to include daily assignment of personnel to provide the Town with twenty-four hour law enforcement coverage and the performance of the tasks of forwarding departmental mail and sub- mitting departmental bills to the Board. On being appointed as Administrator in March of 1985, Wiswell was given no indication of the length of his term as Administrator other than that he would serve only until a chief was selected. The Board has no target date for this selection and is not presently looking for a replacement for Smith. Wiswell has been informed that he has no chance of becoming chief. Wiswell meets with the Board at its weekly meetings; other patrolmen do not. Wiwell has no input into the formulation or modi- -4- ______________________________________________________________________ fication of any departmental policy. Wiswell attends the Board's meetings to deliver the mail, take note of complaints and to tender the Department's bills for operating expenditures. The Department's regular operating expenses typically include expenditures for depart- mental office supplies, the repair of vehicles, fuel, communication equipment, uniforms and wages Although Chief Smith and Wiswell both submitted bills for payment to the Board, Smith, unlike Wiswell, did not have to secure Board approval of operating expenditures. The Board does not intend the Administrator to have any budgetary respon- sibility. In the past, the police chief promulgated a budget. However, the Board now performs this function and presents its pro- posed budget to the Town's budget committee. The Administrator's disciplinary authority is limited to the issuance of oral reprimands only. There is no record of any indivi- dual oral reprimand having been given by Wiswell. Discipline requiring written personnel file annotation and higher levels of discipline may be dispensed only by the Board, although the Administrator may be a conduit for such discipline. Wiswell has made gratuitous disciplinary recommendations to the Board. The Administrator does not establish, participate in establishing, or have any responsibility in implementing performance standards for police department personnel. Wiswell oversees maintenance of the Department's vehicles. Wiswell also approves accident reports and signs gun permits issued by the Town. Wiswell does not perform personal injury investigations. Other patrolmen occasionally issue gun permits and towing permits. Wiswell has never evaluated the performance of patrolmen and will have no greater role in training new officers than any other patrolman. Only ten percent of Wiswell's total work time is devoted to admini- strative duties. There are no written job descriptions for any of the Department's employees, although the Town possesses and has delivered to Department employees a set of standard operating procedures (SOP) which sets forth the duties of the police chief and patrolmen. The SOP was developed between March 1985, and the resignation of former Chief Gordon Smith. -5- ______________________________________________________________________ Only full-time patrolmen are authorized to investigate accidents involving personal injury although reserves have conducted such investigations. Full-time patrolmen and reserves are supervised in the same manner by the Board. The Board does not perceive any dif- ference in the duties of full-time and reserve patrolmen. All patrolmen carry weapons and are empowered to make arrests. The uni- forms worn by full-time and reserve patrolmen are identical and are furnished by the Town. The badges of full-time patrolmen and reserves are silver and are normally indistinguishable. The police administra- tor's badge is gold and displays the title "Administrator." Full-time officers are required to undergo the more extensive law enforcement training provided at the Police Academy. The two reserves, Butler and Wiswell, have undergone a less demanding course of instruction and are certified as reserves by the State. Patrolman Pray is presently at the Police Academy and is not scheduled to work. Pray's absence has caused other full-time and reserve patrolmen to have to work more hours. The present normal shift of patrolmen is four 12-hour days with overtime compensation of time and one-half for all hours exceeding forty-three. Wiswell, with input solicited from the patrolmen, promulgates the Department's sche- dule, under instructions from the Board to maintain a 43-hour maximum workweek for each employee. The Board can change the schedule pro- mulgated by Wiswell if it desires. Wiswell's present practice is to schedule full-time patrolmen for 48 hours each and then schedule reserves for as many hours as he can. Wiswell then informs patrolmen on a seniority basis of discretionary overtime available to them. He then makes the balance of the workweek available to reserves. Under the scheduling of Chief Smith and under Wiswell until quite recently, reserves were called just before an open shift to determine if they wanted to work. Only in the last month or so have reserves worked regularly scheduled days. Wiswell has permitted or required the full- time patrolmen to promulgate the work schedule themselves. Patrolmen may swap shifts at their discretion. With a full complement of three patrolmen and a chief there is no regularly scheduled overtime. With a full complement, only during sicknesses and/or vacations are there -6- ______________________________________________________________________ hours available to be worked by reserves. Wiswell must find someone to fill every shift or must work the unfilled shifts himself. Wiswell may ask the State Police to cover the Town only in emergency situations. Wiswell attempted to turn the police protection of the Town over to the State Police on one occasion but was told, on informing the Board's chairman of his intended action, to get someone to cover the shift. In the week of September 22-28, 1985, Cary Prokey was required to work forty-eight hours and volunteered to work an additional eighteen. The Board has maintained an "open door" policy concerning employee grievances. There is no grievance procedure other than direct contact with the Board. When Prokey and Pray approached Wiswell with overtime complaints, Wiswell threatened to do away with their overtime completely. The Board was requested by Prokey to remedy perceived inequities in Wiswell's scheduling. Wiswell was sub- sequently told by the Board to conform his scheduling to the Board's announced 43 hour per week goal. Additionally, in response to a complaint by Butler that Wiswell was not working at all, the Board admonished Wiswell to schedule himself more often. At some undisclosed date between the time that Butler approached Wiswell regarding his complaint and the date on which Butler took his complaint to the Board Wiswell called a meeting and informed all patrolmen that circumventing him in the chain of command and going straight to the Board without giving him a chance to solve the par- ticular problem would result in progressive discipline and possibly dismissal. He also stated that he had the Board's backing in the matter. Butler informed Wiswell that he would continue to take his complaints to the Board as he had in the past. Wiswell has also distributed typed memos to all patrolmen concerning the cleanliness and fuel servicing of vehicles. In response to the forced entry of his desk, Wiswell issued a written notice which informed Department personnel that if he found the culprit, the culprit would be looking for a new job. The Board retains the power to hire and fire employees and to impose discipline. Prokey, Pray and Huston filed applications with -7- ______________________________________________________________________ and were interviewed and hired by the Board. The Board fired Patrolman Harvey Barr for failing to obey a selectman's direct order to remove insignia being worn by him, in contravention of the Department's table of organization. Wiswell's participation in the matter was merely that of a go-between. There is a one-year probationary period for full-time patrolmen. Department employees are paid weekly and Board members sign the departmental payroll. Full-time patrolmen earn $5.25 per hour while reserves earn $4.00 per hour. The Administrator receives a stipend of $100 per week in payment for his administrative duties. Neither full- time nor reserve patrolmen receive any medical insurance or sick leave benefits. Full-time patrolmen earn a one week-paid vacation after six months on the job and two weeks after a year. DISCUSSION The three substantive issues presented in the instant case are as follows: 1. Is the police administrator a department head within the meaning of 26 M.R.S.A. 962(6)(D) (Supp. 1984-85). 2. Are reserve patrolmen excluded from the phrase "public employee" by 26 M.R.S.A. 962(6)(G) (Supp. 1984-85). 3. Do reserve patrolmen share a community of interest with full-time patrolmen within the meaning of 26 M.R.S.A. 966(2) (Supp. 1984-85). As is more fully explained in my following seriatim treatment of the issues above, I conclude that the potice administrator is not a department head within the meaning of the Act and that the Townes reserve patrolmen are not public employees within the meaning of the Act. Therefore, any community of interest which reserves may share with full-time patrolmen is irrelevant to my determination. of an appropriate bargaining unit of the Town's law enforcement employees. However, I also conclude that full-time and reserve patrolmen do not share a community of interest. The test to be applied in determining whether an employee is a 26 M.R.S.A. 962(6)(D) (Supp. 1984-85) department or division head -8- ______________________________________________________________________ is: 1. Whether the employee is the Administrator of the depart- ment or division, and 2. Whether the employee is appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer. Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03 (Me.L.R.B. Apr. 11, 1984), aff'd, No. CV-84-235 (Me. Super. Ct., Yor. Cty., Feb. 28, 1985). In applying this test and in applying other exclusionary methodologies herein I am cognizant of the policy that "[s]ince the purpose of the Act is to provide public employees the right to join unions and be represented in collective bargaining . . . the excep- tions to the definition of 'public employee' should be narrowly construed and any exception must be held to mean what it declares plainly." Maine Office of Employee Relations v. Maine Labor Relations Board, No. CV-77-135 (Me.L.R.B Super. Ct., Ken. Cty., Oct. 10, 1980), quoted in, Teamsters Local Union No. 48 and Town of Lisbon, Hearing Examiner's Unit Determination Report [No. 81-UD-17], slip op. at 4 (Me.L.R.B. June 8, 1981). Because it is the easiest answered, the second of the test's inquiries is undertaken first. The testimony establishes that Wiswell was placed in the police administrator position by the "resolve" of the Board of Selectmen of the Town of Lebanon. Appointment in this manner expressly satisfies the degree of importance and formality needed to satisfy the Act's requirement that the department head be appointed to office "pursuant to statute, ordinance or resolution." See Teamsters Local Union No. 48 and City of Saco, Hearing Examiner's Unit Determination Report [No. 80-UD-34], slip op. at 5 (Me.L.R.B. J[u]n. 20, 1980). However, Wiswell was not appointed to the police administrator posi- tion for an "unspecified" period of time. Although the ultimate length of his tenure is not at present ascertainable, his appointment is nonetheless for the specific period of time during which the Department is without a chief. Wiswell understands that his appoint- ment is only for this specified period of time. The department head exemption is, therefore, inapplicable on this basis alone. Teamsters -9- ______________________________________________________________________ Local Union No. 48 and Town of Dixfield, Hearing Examiner's Unit Determination Report [No. 80-UD-20], slip op. at 2 (Me.L.R.B. Mar. 14, 1980). However, because the issue of the actual managerial authority of the Administrator is also applicable to the question of whether he is appropriately excluded on the basis of his supervisory functions, I shall also address the first inquiry of the test. It must be noted at the outset that a finding that an employee is a Section 962(6)(D) department head need not rest, in whole or in part, on that employee's exercising any supervisory authority over subordinate employees. Teamsters Local Union No. 48 and Town of Kennebunk, Hearing Examiner's Unit Determination Report [No. 83-UD-23], slip op. at 4 (Me.L.R.B Apr. 27, 1983). The Board has previously stated that its cases establish that for an employee to be a 'department head' within the meaning of Section 962(6)(D), the employee's primary respon- sibility must be that of managing or directing the affairs of the department, as opposed either to acting as a supervisor or to per- forming the day-to-day work of the department." Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03 (Me.L.R.B. Apr. 11, 1984), aff'd, No. CV-84-235 (Me. Super. Ct., Yor. Cty., Feb. 28, 1985). The record establishes that unlike the chief before him, the Administrator has no budgetary or financial responsibilities, other than delivering the Department's bills to the Board for payment. The Administrator has no input into establishing the wages or benefits of patrolmen, does not establish standards for or assess their perfor- mance and does not direct their work in any manner. The Administrator attends the Town's weekly meetings but has no input into establishing any departmental policy. The record also establishes that the Board has reserved to itself all disciplinary powers, save that of oral reprimand. There is no evidence of any oral reprimand by the Administrator. Additionally, the record establishes that the patrolmen purportedly supervised by Wiswell disregard his express instructions to the contrary and bypass him to speak directly with the Board to correct any grievances they have with his scheduling of their hours. The record establishes that other than being a coordinator of the schedule the Administrator has absolutely no day-to-day opera- -10- ______________________________________________________________________ tional or supervisory responsibilities. Indeed, other than the par- ticipatory scheduling task, which he has on some occasions turned completely over to the scheduled employees, Wiswell's administrative duties appear to be ministerial or custodial in nature. In any event, these administrative duties occupy no more than ten percent of his work day. Although Wiswell makes some unidentified markings on the personnel files of patrolmen, there is no evidence establishing that these markings are more than memorializations of hours worked. Wiswell's approval of accident reports and his issuance of gun and towing permits appear to be pro forma. Additionally, there is no evidence establishing that Wiswell's threat concerning discharge of any person found to have entered his desk was anything more than a prognostication of the action which the Board might take after the identification of the culprit. The department head exemption has been found inapplicable to employees with greater duties than those of the administrator herein. See Teamsters Local Union No. 48 and Boothbay Harbor Water System, Hearing Examiner's Unit Determination Report [No. 82-UD-29] (Me.L.R.B. May 11, 1982) (setting employees' hours and work schedules, first level grievance processing, supervising maintenance of buildings, vehicles and equip- ment, establishing work priorities, making hiring recommendations and evaluating employee performance); Teamsters Local Union No. 48 and Town of Bar Harbor, Hearing Examiner's Unit Determination Report [No. 80-UD-09] (Me.L.R.B. Nov. 15, 1979) (responsibility for day-to-day plant opera- tion, scheduling of employees, arranging for the processing of equip- ment and supplies into the plant and budget item submission). The MLRB has opined that excluding, as department heads, employees "whose primary duties involve rank-and-file work merely because these employees also perform some administrative duties would be contrary to the Act's purpose of granting employees the right to be represented in collective bargaining." Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03 (Me.L.R.B. Apr. 11, 1984), aff'd, CV-84-235 (Me. Super. Ct., Yor. Cty., Feb. 28, 1985). As explained above I conclude that the Administrator is not a department head. I also conclude that his inclusion in the patrolman -11- ______________________________________________________________________ unit is not made inappropriate because of any supervisory respon- sibilities. Supervisors are expressly entitled to be represented by collective bargaining agents by the Act. See 26 M.R.S.A. 966(1) and 962(6) (Supp. 1984-85). Therefore, the crucial inquiry in this regard is whether the Administrator possesses a conflict of interest with Patrolmen which outweighs any community of interest which he may share with them. I conclude that there is no such conflict of inter- est. The only area in which the Administrator possesses the capacity to make employment decisions adverse to the interest of patrolmen is in the area of scheduling and the record clearly establishes that even in this area he lacks final authority. Moreover, the exclusion of this employee is undesirable in light of the Board's announced policy against the proliferation of bargaining units within a single depart- ment. See M.S.A.D. No. 43 and S.A.D. No. 43 Teachers Association, No. 84-A-05, slip op. at 4 (Me.L.R.B. May 30, 1984); Town of Yarmouth and Teamsters Local Union No. 48, No. 80-A-04, slip op. at 4 (Me.L.R.B. June 16, 1980); Teamsters Local Union No. 48 and Town of Lisbon, Hearing Examiner's Unit Determination Report [No. 81-UD-17], slip op. at 5 (Me.L.R.B. June 8, 1981); Millinocket Education Association and Millinocket School Committee, Hearing Examiner's Unit Clarification Report [No. 80-UC-11], slip op. at 5 (Me.L.R.B. May 21, 1980). I have considered the duties of the Administrator in light of the following requirement of 26 M.R.S.A. 966(1) (Supp. 1984-85): In determining whether a supervisory position should be excluded from the proposed bargaining unit, the executive director or his designee shall consider, among other cri- teria, if the principal functions of the position are characterized by performing such management control duties as scheduling, assigning, overseeing and reviewing the work of subordinate employees, or performing such duties as are distinct and dissimilar from those performed by the employees supervised, or exercising judgment in adjusting grievances, applying other established personnel policies and procedures and in enforcing a collective bargaining agreement or establishing or participating in the establish- ment of performance standards for subordinate employees and taking corrective measures to implement those standards. It is my conclusion that the Administrator's duties do not rise to the described above, as an appropriate basis for excluding super- -12- ______________________________________________________________________ visory personnel. See Teamsters Local Union No. 48 and Van Buren Light and Power District, Executive Director's Unit Determination Report [No. 85-UD-14] (Me.L.R.B. Jan. 25, 1985) (duties of line foreman who assigns, oversees and reviews work of employees determined as a whole not to be so distinct and dissimilar from those performed by supervised employees to warrant exclusion from proposed unit); Teamsters Local Union No. 48 and Town of Pittsfield, Hearing Examiner's Unit Determination Report [No. 81-UD-09] (Me.L.R.B. Jan 15, 1981) (sergeant position found to be "working supervisor" where supervisory duties were limited and undemanding and where vast majority of time was devoted to regular patrol work); City of Bangor and Local 1599, IAFF, Hearing Examiner's Unit Determination Report [No. 80-UD-15] (Me.L.R.B. Feb. 1, 1980) (fire lieutenants held to be "group leaders" or "working foremen" where they had various added responsibilities of a limited nature but essentially performed rank-and-file duties). The inquiry now turns to whether reserves are excluded from the public employee definition because they are temporary, seasonal or on- call employees. I conclude that the reserves are on-call employees expressly excluded by the Act. "The point of the 'temporary, seasonal or on-call' exclusion is to exclude those employees who, because they work irregularly or sporadically, do not have a community of interest with permanent, full-time employees in the unit." Council #74, AFSCME and County of Knox, Hearing Examiner's Unit Determination Report [No. 82-UD-17], slip op. at 5 (Me.L.R.B. Jan. 18, 1982), quoting, Town of Berwick and Teamsters Local Union No. 48, No. 80-A-05, slip op. at 3 (Me.L.R.B. July 24, 1980). The number of hours worked per week is a significant or leadinq factor in this determination. Although reserves have recently worked many hours in excess of four per week, due to both the police chief vacancy and the absence of the one patrolman in attendance at the Academy, the testimony establishes that during past periods of full staffing by three patrolmen and a chief there has been no overtime for full-time patrolmen and minimal hours available for reserves. The testimony also establishes that these reserve work-hours are distributed on a fill-in basis only and that they have not been regularly scheduled. -13- ______________________________________________________________________ The testimony also establishes that with a full staff this would be the case in the future. Patrolmen get no sick leave presently and only two weeks of paid vacation after one year. Since the actual work schedules of reserves would have been the most readily available and appropriate form of proof of the regularity and extent of the sche- duling of reserves, I conclude that the Town's failure to produce such indicates that the records, if produced, would not have supported the Town's case. Assuming, arguendo, one week of unpaid sick leave and two weeks of paid vacation leave both averaged over 52 weeks, the total weekly number of hours of absence with a full staff is a little less than ten hours. With a staff of four working forty-three hours each, there is a weekly work-hour total of 172 man-hours to cover 168 possible work- hours. Offsetting the four extra work-hours against the ten total absence hours leaves an average available reserve hour figure of six hours per week. Even using the present and lowest number of reserves, which is two, this results in an average of three hours per week per reserve. In light of the fact that the Town has had at least three reserves in the past and in light of the Town's testimony that five additional reserves were to be sworn within one week of the hearing, there can be little doubt that under normal circumstances the average weekly hours worked by any one reserve will be substantially less than four. Moreover, even this average weekly hour figure assumes that all absences will be distributed pro rata over the 52-week work year. Reality and the testimony both confirm that this is not the usual case and that hours of reserves will be irregular and on an on-call basis. I therefore conclude that the Town's reserves are not public employees within the meaning of the Act due to their exemption as on-call employees by 26 M.R.S.A. 962(6)(G) (Supp. 1984-85). Since reserves are not public employees they are expressly prohib- ited from being included in a bargaining unit by 26 M.R.S.A. 966(1) (Supp. 1984-85), which provides, inter alia, that "anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit." Furthermore, even though I have found reserves to be expressly exempted by the Act I also conclude that they do not share a community of interest with full-time patrolmen and -14- ______________________________________________________________________ should not be included in the petitioned-for unit on that basis. The controlling portions of the Act provide "that there must be a 'clear and identifiable community of interest among the employees concerned' for a given bargaining unit to be appropriate for the pur- poses of collective bargaining." Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 4 (Me.L.R.B Feb. 6, 1985). See 26 M.R.S.A. 966(2) (Supp. 1984-85) The Maine Labor Relations Board has set forth eleven cri- teria to be used in determining the existence or absence of a com- munity of interest. Those factors are: (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) simi- larity in the qualifications, skills and training of employ- ees; (6) frequency of contact or interchange among the employees; (7) geographic proximity; (8) history of collec- tive bargaining; (9) desires of the affected employees; (10) extent of union organization; and (11) the public employer's organization structure. Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at 3-4 (Me.L.R.B. Oct. 17, 1979), cited with approval in, Penobscot Valley Hospital and Maine Federation of Nurses and Health Care Professionals, No. 85-A-01, slip op. at 4 (Me.L.R.B. Feb. 6, 1985), and, Council 74, AFSCME and Teamsters Local Union No. 48 and County of Cumberland, No. 84-A-04, slip op. at 11 (Me.L.R.B. Apr. 25, 1984). Full-time and reserve patrolmen perform nearly identical work, with the one exception being the theoretical prohibition of the performance of personal injury investigation by reserves. They are both supervised by the Board, which also sets their salaries. Full- time patrolmen, however, earn over thirty percent more per hour and earn vacation leave. Reserves have no fringe benefits. Full-time employees normally work very many more hours than reserves and get first choice as to those hours. Reserves normally work on an on-call basis whereas the work of full-time patrolmen is generally scheduled. Reserves do not attend as demanding a qualification course -15- ______________________________________________________________________ as do full-time patrolmen. Although there is some interaction between employees it is limited to shift change. At least one of the two reserves desires to be included in the unit. There is no indication of the desires of full-time patrolmen concerning the inclusion of reserves. Factors 7, 8, 10 and 11 are not pertinent to the instant case. Upon consideration of all of the factors above I conclude that full-time and reserve patrolmen do not share a community of interest and are, therefore, not appropriately included in the same bargaining unit. Compare Town of Berwick and Teamsters Local Union No. 48, No. 80-A-05 (Me.L.R.B. July 24, 1980) (appropriate to include part-time officers in full-time police officer unit where part-timers worked year-round on regularly-scheduled shifts, worked closely with full- time officers, were on the Town's regular payroll and received some of the fringe benefits of full-time officers). Moreover, even though the police administrator has not been excluded as a supervisor or department head herein, the present status of the incumbent as a reserve officer serves to exclude him from the bargaining unit. 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. 966, the undersigned directs that: 1. The police administrator is not a department head within the meaning of 26 M.R.S.A. 962(6)(D) (Supp. 1984-85). 2. Reserve patrolmen are on-call employees within the meaning of 26 M.R.S.A 962(6)(G) (Supp. 1984-85). 3. The appropriate unit of law enforcement employees of the Town of Lebanon consists solely of full-time patrolmen, as was requested in the petition of Teamsters Local Union No. 48. Dated at Auqusta, Maine this 17th day of October, 1985. The parties are advised of their right, pursuant to 26 By: /s/_____________________________ M.R.S.A. 968(4) (Supp. M. Wayne Jacobs 1984-85), to appeal this Counsel report to the full Labor Maine Labor Relations Board Relations Board within 15 days of the date of this report. -16- ______________________________________________________________________