Teamsters and Town of Kittery, No. 83-UD-04, Affirmed 83-A-02 STATE OF MAINE MAINE LABOR RELATIONS BOARD [No. 83-UD-04] _____________________________ ) TEAMSTERS LOCAL UNION NO. 48 ) ) and ) UNIT DETERMINATION REPORT ) TOWN OF KITTERY ) _____________________________) This is a unit determination proceeding, initiated on September 22, 1982 when Teamsters Local Union No. 48 (Local 48) filed a petition for unit determina- tion pursuant to 26 M.R.S.A. Section 966 and a petition for election pursuant to 26 M.R.S.A. Section 967(2). A hearing on the petitions was held by the under- signed hearing examiner on October 21, 1982 in Augusta, Maine. Local 48 was repre- sented by Secretary/Treasurer Walter J. Stilphen, Jr., and the Town of Kittery (Town) by Duncan A. McEachern, Esq. Local 48 seeks by its petitions formation of a supervisory bargaining unit composed of the Sergeants employed by the Kittery Police Department. The Town has no objection to the formation of a bargaining unit of Sergeants but urges that, because Local 48 already represents the Police Department Dispatchers and Patrolmen, an inherent conflict of interest would arise if Local 48 was permitted to represent the supervisory personnel. Thus, while the Town has no objection to some union other than Local 48 representing the Sergeants, it contends that the hearing examiner should rule that Local 48 cannot represent the Sergeants because of the potential for conflicts of interest. Presented as a witness by Local 48 was Edward F. Strong, a Sergeant in the Police Department, while the Town presented Town Manager John R. Kennedy as a witness. Neither Party introduced any exhibits. The Town submitted a post-hearing memorandum, which has been considered by the hearing examiner. JURISDICTION Local 48 is a public employee organization within the meaning of 26 M.R.S.A. Section 967(1). The Town is a public employer as defined in 26 M.R.S.A. Section 962(7). The jurisdiction of the hearing examiner to hear this case and rule on [-1-] ___________________________________________________________________________________ the petition for unit determination lies in 26 M.R.S.A. Section 966(1). FINDINGS OF FACT Local 48 is the exclusive bargaining agent for a bargaining unit of Dis- patchers and a unit of Patrolmen at the Kittery Police Department. Collective bargaining agreements have been negotiated and are in effect for both of these bargaining units. The parties agree that the three Sergeants in the Department supervise both the Dispatchers and the Patrolmen, performing such duties as set- ting up work schedules and assigning work, evaluating the job performance of the subordinate employees, and handing out discipline for minor infractions and recom- mending discipline for major infractions. The Police Department also employs a Chief of Police. Local 48 also represents a bargaining unit of Kittery Highway Department employees. Town Manager John Kennedy testified that he believed substantial problems would arise if the same union represented both the supervisory employees and the rank-and-file employees. For example, the Sergeants evaluate the Dispatchers and Patrolmen and make a recommended evaluation, which can be changed by the Chief of Police, for each employee. The Town Manager stated that the Sergeants might not be as likely to make objective evaluations of fellow union members. Similarly, the Sergeants are authorized to issue oral and written disciplinary warnings and to recommend stronger discipline to the Chief, and again the Town Manager felt the Sergeants might tend not to discipline the employees properly if all belonged to the same union and were accountable to the same union officials. The handling of grievances also would create difficulties, the Town Manager testified, because a Patrolman or a Dispatcher could grieve a Sergeant's actions and both the griev- ant and the Sergeant might look to the union for advice. A Sergeant might also have to testify contrary to the union's position in one grievance proceeding and then have to rely on the union to present his grievance in another proceeding creating, in the opinion of the Town Manager, a possible conflict of interest for the union. Negotiating agreements for the three bargaining units with the same union officials also would be unduly difficult, according to the Town Manager. The Town Manager felt that the basic problem resulted from the fact that all em- ployees would have to rely on the same individuals for representation, and that the Sergeants should have different people negotiating for them and handling their -2- ___________________________________________________________________________________ grievances. Many of these problems and conflicts of interest could therefore be avoided, the Town Manager stated, if the Sergeants were represented by a different union than the one representing the Dispatchers and Patrolmen. DECISION At issue is the question whether the Sergeants, the supervisors of the Dispatchers and Patrolmen, can also be represented by Local 48 if they so choose. The Town urges that supervisors and rank-and-file employees cannot be represented by the same union because substantial problems and conflicts of interest would arise, impeding the conduct of labor relations in the Town.[fn]1 Local 48 contends that the Municipal Public Employees Labor Relations Act, 26 M.R.S.A. Section 961, et seq. (Act) grants public employees full freedom of choice in the selection of their bargaining agent and that it is a common practice in Maine for the same union to represent both the supervisors and the rank-and-file employees in police departments and in other municipal divisions. After carefully considering vari- ous provisions of the Act, the hearing examiner concludes that the Labor Relations Board has no authority to dictate that employees cannot be represented by a par- ticular union of their own choosing. The hearing examiner accordingly will grant Local 48's unit determination petition and will order that an election be conducted to determine whether the Sergeants wish to be represented by Local 48. It is entirely true, as the Town contends, that some courts have recognized that conflicts of interest may arise if the same union represents both supervisory personnel and rank-and-file employees. For example, in Elk Grove Firefighters Local No. 2340 v. Willis. 400 F.Supp. 1097 (N.D. Ill. 1975), the Court found that a municipal policy prohibiting fire department supervisors from belong to any union that also had as members rank-and-file firefighters did not infringe the First Amendment rights of the supervisors. The substantial state interest which justified the policy, the Court said, was the need for a disciplined, efficient fire department: "creation of a common union composed of rank and file firefighters and their superior officers poses a sufficiently serious threat of ineffective supervision based upon divided loyalties to warrant preventive action." 400 F.Supp __________ 1/ The Town of course does not dispute the point that public sector supervisors in Maine can form bargaining units and engage in collective bargaining. See 26 M.R.S.A. Sections 962(6) and 966(1). -3- _________________________________________________________________________________________ at 1103. Accord, York County Fire Fighters Association v. York County. 589 F.2d 775 (4th Cir. 1978).[fn]2 However, in Orr v. Thorp, 308 F.Supp. 1369 (S.D. Fla. 1969), the Court struck down a statute authorizing the dismissal of any supervisor who joined a labor organization representing teachers, in part on the ground that the statute improperly impinged on the constitutional freedoms of expression and association. The hearing examiner acknowledges that certain problems and conflicts of in- terest may arise, as outlined by the Town Manager in his testimony, if Local 48 is permitted to represent both the Sergeants and the subordinate officers in the Police Department. Since no constitutional issues are raised by the instant case, however, the hearing examiner concludes that he must look to the Act in deciding whether in the Maine public sector the same union may represent both supervisors and rank-and-file employees. Several provisions of the statute are pertinent to this inquiry. First, Section 963 guarantees public employees free exercise of the right to join labor organizations of their own choosing: No one shall directly or indirectly interfere with, intimidate, restrain, coerce or discriminate against public employees or a group of public employees in the free exercise of their rights, hereby given, voluntarily to join, form and participate in the activities of organizations of their own choosing for the pur- poses of representation and collective bargaining, or in the free exercise of any other right under this chapter. Second, Section 966(2) requires that hearing examiners when making bargaining unit determinations "insure to employees the fullest freedom in exercising the rights guaranteed by this chapter." Finally, Section 967(2) provides that the Executive Director shall conduct a secret ballot election "upon signed petition of at least 30% of a bargaining unit of public employees that they desire to be represented by an organization," and nothing in this provision or in any other section of the statute suggests that the Executive Director could refuse to conduct an election on the ground that the organization designated by the employees already represents a rank-and-file bargaining unit in the department. The Law Court has said that in light of language in the Act the principle of "freedom of employee self-organiza- tion" is a "fundamental purpose" of the statute. Lewiston Firefighters Association __________ 2/ Other cases cited by the Town do not involve the question whether supervisors may be represented by the same union that represents rank-and-file employees, and therefore are not particularly pertinent to the present case. -4- _________________________________________________________________________________________ v. City of Lewiston, 354 A.2d 154, 161 (Me. 1976). In the opinion of the hearing examiner the statutory language expresses a clear legislative intent that public employees are entitled to the fullest free- dom to join labor organizations of their own choosing. While the Legislature could have placed certain limitations or restrictions on the rights of supervisors to form bargaining units and join unions, as has been done in other jurisdictions,[fn]3 no such limitations are apparent in the Act. Any attempt by this agency to limit the right of supervisors to join unions therefore would seem to be directly con- trary to the statutory mandate, as such a ruling would interfere with the free exercise of the supervisors' right to join a union of their own choosing, guar- anteed by Section 963. The hearing examiner accordingly concludes that he cannot lawfully rule, as the Town requests, that the Sergeants cannot be represented by Local 48 if they so desire. The hearing examiner also notes that the practice in Maine since enactment of the Act in 1969 has been to allow the same union to represent both the super- visors and the rank-and-file employees in a single department, and there are many examples where this has occurred. Although this practice has the potential for creating various problems and conflicts of interest, as previously noted, the hearing examiner is not aware of a single instance where it has caused a major dispute or disruption in the delivery of public services. Indeed, the experience of the hearing examiner suggests that the practice has fostered good labor rela- tions in the State. Thus, while the concerns expressed by the Town certainly are legitimate, they seem somewhat overstated. The hearing examiner therefore will order that a bargaining unit of Sergeants at the Kittery Police Department be established and that the Labor Relations Board proceed to conduct a secret ballot election to determine whether a majority __________ 3/ For example, Section 14(a) of the Labor Management Relations Act. 29 U.S.C.A. Section 164(a) provides that no employer subject to the Act can be compelled to deal with supervisors as members of bargaining units, meaning in essence that supervisors in the private sector are not entitled to form bargaining units and negotiate with their employers. The statute in New Hampshire pro- vides that public sector supervisors cannot belong to the same bargaining unit as the employees they supervise, although the same union can represent both bargaining units. See, e.g.. City of Concord v. Public Employee Labor Relations Board, 407 A.2d 363 (N.H. 1979). In Minnesota, the same union can represent bargaining units of supervisors and of rank-and-file employees, but the units must be separate locals of the union which bargain separately with the employer. County of Washington v. AFSCME, Council 91, 262 N.W.2d 163 (Minn. 1978). -5- _________________________________________________________________________________________ of the Sergeants wish to be represented by Local 48. ORDER On the basis of the foregoing findings of fact and discussion and by virtue of and pursuant to the powers granted by 26 M.R.S.A. Section 966, it is ORDERED: 1. Local 48's unit determination petition is granted. The supervisory bargaining unit at the Kittery Police Depart- ment is composed of all employees holding the Sergeant job classification. 2. The Town's objection that Local 48 should not be permitted to represent the supervisory bargaining unit is denied. The Executive Director or his designee should proceed to conduct a secret ballot election to determine whether a majority of the supervisors wish to be represented by Local 48. Dated at Augusta, Maine, this 5th day of November, 1982. MAINE LABOR RELATIONS BOARD /s/________________________________ Wayne W. Whitney, Jr. 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 receipt of the report. -6- _______________________________________________________________________________