Affirming Case No. 12-UD-05

 

		
	   						INTRODUCTION


     The Freeport Police Benevolent Association ("Union") filed
this unit appeal on July 5, 2012, pursuant to 26 M.R.S.A. 
§ 968(4) of the Municipal Public Employees Labor Relations Law
("MPELRL") and Chapter 11, § 30 of the Rules of the Maine Labor
Relations Board.  The unit determination report, which is the
subject of this appeal, was issued on June 19, 2012.  The hearing
addressed the unit determination petition filed by the Union
seeking to add the sergeants of the Freeport Police Department to
the patrol officers unit, for which the Union is the bargaining
agent.  The Town of Freeport ("Town") responded to the petition,
stating that the sergeants should be excluded from the patrol
officers unit and should, rather, form a separate supervisors
bargaining unit. In his Unit Determination Report, the Executive
Director agreed with the Town, concluding that the sergeants
exercised a level of control over employment-related issues and
would likely result in a conflict of interest with the patrolmen
as defined in 26 M.R.S.A. § 966(1).  On appeal, the Union argues
that the sergeants do not exercise sufficient supervisory
authority over the patrol officers, pursuant to 26 M.R.S.A. §
966(1), to be excluded from the patrol officers bargaining unit.


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                        PROCEDURAL HISTORY

     On April 12, 2012, Gino Bianchini, the President of the
Union, filed a petition for unit determination with the Maine
Labor Relations Board ("Board").  The petition sought a
determination of whether the sergeants at the Freeport Police
Department should be added to the existing bargaining unit
consisting of the full-time patrol officers employed by the
Freeport Police Department, for which the Union is the bargaining
agent.  The Town filed a timely response to the petition.  The
Town argued that the sergeants are supervisors within the meaning
of 26 M.R.S.A. Sec. 966(1), and, therefore, should not be
included in the same unit as the patrol officers they supervise.
Instead, the Town suggested that the sergeants constitute an
appropriate supervisors bargaining unit.
     On May 21, 2012, a unit determination hearing notice was
issued and was posted for the benefit of affected employees. A
unit determination hearing was held in front of the Executive
Director on May 31, 2012, at the Maine Labor Relations Board. 
The Union was represented by Jonathan Goodman, Esq., and the Town
was represented by Matthew Tarasevich, Esq.  The parties were
afforded the full opportunity to examine and cross-examine
witnesses, to present evidence, and to make argument.  Sergeant
John Perrino testified on behalf of the Union; Police Chief
Gerald Schofield testified on behalf of the Town.  At the
conclusion of the hearing, each party presented oral argument.
On June 19, 2012, the Executive Director issued a decision, in
which he denied the petition for unit determination and,
therefore, found that the sergeants should be a separate
bargaining unit from the rest of the employees of the Town of
Freeport, including the patrol officers.  On July 5, 2012, the
Union filed an appeal of the Executive Director's decision.  Both
parties submitted written arguments on the appeal.  The Board
deliberated this matter on October 19, 2012.

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                           JURISDICTION

     The Union is an aggrieved party within the meaning of 26
M.R.S.A. § 968(4).  The jurisdiction of the Maine Labor Relations
Board to hear this appeal and to render a decision lies in 26
M.R.S.A. § 968(4).

                         FINDINGS OF FACT

     1.   The Freeport Benevolent Association ("Union") is the
petitioner and is the bargaining agent for the Freeport Patrol
Officers bargaining unit within the meaning of 26 M.R.S.A. 
§ 962(2).
     2.  The Town of Freeport ("Town") is a public employer
within the meaning of 26 M.R.S.A. § 962(2).
     3.  The current collective bargaining agreement between the
Union and the Town expired on June 30, 2012.  Therefore, the
petition initiating this case was timely filed.
     4.  The Police Chief is the head of the Freeport Police
Department.  The rest of the department consists of thirteen
employees:  one lieutenant, two sergeants, eight patrol officers,
one detective (patrol officer), and one secretary.
     5.  The chain of command at the Freeport Police Department
is as follows:  The patrol officers and the detective report to
the sergeants; the sergeants report to the lieutenant; and the
lieutenant and secretary report to the Police Chief.
     6.  The department operates 24 hours a day on a three-shift
per day system.  The Police Chief and the lieutenant work during
the day, Monday through Friday, although the Police Chief may
stop by the department at any time.  One sergeant and one patrol
officer cover the 5:00 p.m. to 3:00 a.m. shift.  There is no
sergeant on duty from 3:00 a.m. to 7 a.m., but there is a
sergeant on call during that time.  On weekend days, there is no
supervisor or administrative officer on duty.  The patrol
officers work shifts on a regularly-scheduled, rotating basis.

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     7.  Three or four of the patrol officers are "younger
officers" who require more supervision than the more seasoned
officers.
     8.  The sergeants provide verbal performance feedback to the
patrol officers with whom they serve on an ongoing basis on their
shifts.
     9.  Sergeant John Perrino testified that he has given "quite
a few" direct orders to the patrol officers whom he supervises,
although those orders are usually informal in nature.
    10.  Approximately 15 percent of the sergeants' work time is
spent on performing supervisory duties.  The remaining 85 percent
of the time, the sergeants perform the same work as the patrol
officers by patrolling the town in a cruiser and responding to
calls.
    11.  According to the Police Department's standard operating
procedure ("SOP") employee discipline procedure, the sergeants
have the authority to discipline the patrol officers verbally or
in writing.
    12.  The discipline SOP further authorizes sergeants to
relieve patrol officers from duty when sergeants "ha[ve] a
reasonable basis to question an employee's physical or
psychological fitness for duty" for serious violations of
departmental policy or for refusal to obey a lawful direct order. 
A sergeant's decision to relieve a patrol officer from duty is
subject to review by the Police Chief.
    13.  According to the Police Department's SOP for complaints
against law enforcement agency personnel, the Police Chief may
assign sergeants to handle relatively minor complaints
informally.  All other such complaints are handled by the
lieutenant.
    14.  When the Police Chief determines that an internal
investigation is required, the Chief assigns an officer to
conduct the investigation.  Usually, the lieutenant is the

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officer assigned; however, Sergeant Perrino has conducted three
such investigations.
    15.  The sergeants write the yearly performance evaluations
of the patrol officers.
    16.  The "wages" article of the patrol officers' collective
bargaining agreement provides a seven-step wage scale and states
that "[a]dvancement on steps shall occur on anniversary dates
based on an average or better evaluation."
    17.  The Police Department work schedule is determined by the
lieutenant without input from the sergeants.  Sergeants can
approve shift swaps and, if an officer calls in sick, the
sergeants find a replacement officer to fill the shift.
    18.  The grievance article of the patrol officers' collective
bargaining agreement provides that the Police Chief is the
decision-maker on behalf of the Town at the first step of the
grievance process.  If the grievance is not resolved at step 1,
it moves to the town manager.  If it is still unresolved, it 
proceeds to arbitration, which is final and binding on the
parties.
    19.  The Police Chief and the lieutenant formulate the
department's standard operating procedures.  Although the
sergeants have no formal role in that process, they may make
suggestions for consideration by the decision-makers.
    20.  In addition to their supervisory and patrol
responsibilities, the sergeants perform assigned departmental
responsibilities that include firearms and self-defense training,
preparing the monthly State inmate population report, serving as
the crash administrator (accident report review), and reviewing
offense and incident reports.  Patrol officers also perform some
of these functions; e.g., a patrol officer serves as the backup
crash administrator, and another is a firearms training officer.
    21.  Sergeants and patrol officers have served on interview
panels to screen candidates for employment with the Police

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Department.  The interviewers make recommendations to the Police
Chief, who is the sole decision-maker in the hiring process.
    22.  The patrol officers, detective, and sergeants are
compensated on an hourly basis and all are on a pay scale, with
the sergeants' scale being higher than for the two other
classifications.  These employees all have a standard 40-hour
work week.
    23.  The patrol officers and sergeants have similar
employment benefits, including the same health care coverage.
    24.  The minimum education qualification for both patrol
officers and sergeants is graduation from high school or the
equivalent.  However, sergeants are expected to have at least
five years of experience as a police officer, although a two-year
degree in law enforcement or training in "modern police
supervision" may be substituted for the experience requirement.
    25.  The sergeants each work with a patrol officer for a
ten-hour shift and the patrol officers cycle through the shifts
on a rotating basis.
    26.  All of the police department employees work out of a
single station.
    27.  The patrol officers' bargaining unit formerly included
dispatchers, but this is no longer the case.
    28.  At hearing, Sergeant Perrino expressed a desire to be
included in the patrol officers' bargaining unit.
    
                            DISCUSSION

     The Executive Director of the Maine Labor Relations Board
("Executive Director") reviewed the documentary and testimonial
evidence presented and concluded that the sergeants exercise
substantial authority over the patrol officers.  Because the
sergeants exercise such authority, and to avoid the conflict that
may flow from that authority, the Executive Director determined
that the sergeants should be assigned to a separate bargaining

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unit from the patrol officers.
 
     The standard of review for the MLRB of bargaining unit
decisions is well-established:

     We will overturn a hearing examiner's rulings and
     determinations if they are "unlawful, unreasonable, or
     lacking in any rational factual basis."  Council 74, 
     AFSCME and Teamsters Local 48, MLRB No. 84-A-04 at 10
     (April 25, 1984), quoting Teamsters Local 48 and City
     of Portland, 78-A-10 at 6 (Feb. 20, 1979).  It thus is
     not proper for us to substitute our judgment for the
     hearing examiner's; our function is to review the facts
     to determine whether the hearing examiner's decisions
     are logical and are rationally supported by the
     evidence.

MSAD #43 and SAD #43 Teachers Assoc., No. 84-A-05 at 3 (May 30,
1984, affirming No. 84-UC-05.  See also, Topsham and Local S/89
District Lodge #4 IAMAW, No. 02-UCA-01 (Aug. 29, 2002, affirming
No. 02-UC-01, aff'd. No. AP-02-68, Ken. Cty. Sup. Ct. (March 20,
2003).  The issue on appeal is whether the Executive Director's
decision that Freeport's police sergeants exercise sufficient
authority over the patrol officers, as defined in 26 M.R.S.A.   
§ 966(1), to exclude them from the patrol officers' bargaining
unit was unlawful, unreasonable, or lacking in any factual basis. 
     
     The relevant portion of 26 M.R.S.A. § 966(1) states:

     In determining whether a supervisory position should
     be excluded from the proposed bargaining unit, the
     executive director or his designee shall consider,
     among other criteria, if the principal functions of the
     position  re 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 establishment of performance standards for 


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     subordinate employees and taking corrective measures 
     to implement those standards.

The Board must determine whether the Executive Director properly
applied this three-part test, the purpose of which is to
determine whether the supervisors have a level of control over
employment-related issues that would likely result in a conflict
of interest with the patrol officers.
     The first portion of the test set forth in § 966(1) measures
whether the principal functions of the sergeants involve
scheduling, assigning, overseeing, or reviewing the work of
patrol officers.  The Executive Director reviewed the evidence
presented and determined that the sergeants assign, oversee, and
evaluate the work of the patrol officers with whom they serve on
the evening and overnight shifts.  He determined that the
sergeants oversee the work of the patrol officers through an
ongoing, verbal positive feedback process and through the formal
performance evaluation process, which in turn controls whether or
not the patrol officers are granted pay step increases.  He also
determined that even though the sergeants have little to do with
setting the duty schedule, they do approve shift-swapping and
covering vacant shifts during vacations and sick time.  Further,
he found that although work assignments may be informal (i.e.,
alternating responses to calls during slow times), the sergeants
determine who responds to the calls by issuing direct orders to
the patrol officers.
     The Executive Director concluded that the sergeants exercise
the supervisory authority cited in 966(1), which in turn may lead
to conflicts between the sergeants and the patrol officers.  That
conclusion was based on the evidence and was not unlawful or
unreasonable, and we affirm the Executive Director's conclusion.
     In order to determine whether the supervisory duties are the
principal function of the Freeport sergeants, the Executive
Director relied on whether the sergeants are actively engaged in 

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assigning and overseeing the work of the patrol officers rather
than measuring the percentage of time performing specific
supervisory duties.  He reasoned that the more opportunity the
sergeants have to assign and oversee the work of the patrol
officers, the greater opportunity there is for conflicts to
arise.  The Executive Director distinguished this situation from
the one in Rockport Police Officers Association and Town of
Rockport, No. 02-UD-05, slip op. at 11-12 (June 12, 2002), where
the patrol sergeants contact with the patrolmen was limited to
shift changes, and whose supervision was limited to reviewing
reports and cruiser dashboard videos.  In Rockport, the hearing
examiner found that the sergeant operated more as a "working
foreman," and, therefore, she declined to exclude that sergeant
from the patrolmen bargaining unit.  Unlike the sergeants in
Rockport, however, the sergeants here have extended daily contact
with the patrol officer on their shifts and they supervise those
patrolmen continuously.  The Executive Director found that even
though the sergeants spend most of their time functioning as law
enforcement officers, that fact does not diminish the importance
of their continuous exercise of supervisory authority.  We agree
with the Executive Director that the level of supervisory
authority held by the Freeport sergeants, combined with the
sergeants' formal evaluations of the patrol officers'
performance, leads to the conclusion that supervisory duties are
the principal function of these sergeants within the meaning of 
§ 966(1).
     The second portion of the test set forth in Section 966(1)
requires us to review the Executive Director's examination of
whether the sergeants perform duties that are "distinct and
dissimilar" from those performed by the patrol officers.  The
"distinct and "dissimilar" requirement has been described as
follows:
     [D]uties contemplated by the 'distinct and dissimilar
     criterion include those in connection with hiring (or

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     making recommendations), transfers, layoffs and
     recalls, and promotions--duties that substantially
     align the interests of the supervisor with the
     interests of the employer and cause conflicts of
     interest [with other employees].

State of Maine and MSEA, No. 91-UC-04, slip op. at 15 (MLRB  
Apr. 17, 1991).  Here, the sergeants' only applicable activity is
their participation in hiring interviews.  However, patrol
officers have participated in hiring interviews as well.  All
authority in hiring matters, as well as the authority to suspend
or discharge employees, is held solely by the Police Chief.  
We agree with the Executive Director that the sergeants do not
perform duties that are distinct and dissimilar from the patrol
officers.
     The third and final portion of the Section 966(1) test
requires us to examine whether the Executive Director correctly
found that the sergeants have no role in adjusting grievances or
establishing performance standards.  Although the sergeants do
take corrective measures to implement performance standards, it
is the Police Chief who sets those standards.  The sergeants have
the authority to issue verbal and written reprimands, and, in
limited circumstances, may relieve patrol officers from duty
subject to review by the Police Chief.  Sergeant Perrino
testified that he has not sent a patrol officer home in the
eleven years he has been a sergeant.  For these reasons, we find
that the Executive Director's determination that the sergeants
have no role in establishing performance standards or adjusting
grievances to be lawful, and reasonable, and supported by
evidence in the record.  MSAD #43 and SAD #43 at 3.
     In sum, the Executive Director's determination that the
sergeants exercise substantial supervisory authority over the
patrol officers that could place the two groups in conflict is
supported by ample evidence in the record and is neither unlawful
nor unreasonable.  We, therefore, affirm the Executive Director's 

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decision to deny the petition for unit determination filed on
April 12, 2012.

                              ORDER

     On the basis of the foregoing discussion and pursuant to the
authority granted to the Maine Labor Relations Board pursuant to
26 M.R.S.A. § 968(4), it is ORDERED:

     That the appeal of Freeport Police Benevolent
     Association filed on July 5, 2012, is dismissed.

Dated at Augusta, Maine, this 29th day of November, 2012.