Teamsters and Town of Wells, No. 84-UC-04 (Jan. 26, 1984),reversed by Board in 84-A-03, Board decision affirmed by Superior Court, CV-84-235. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 84-UC-04 _____________________________ ) TEAMSTERS LOCAL UNION NO. 48 ) ) and ) UNIT CLARIFICATION REPORT ) TOWN OF WELLS ) _____________________________) This unit clarification proceeding was initiated on November 3, 1983, when Teamsters Local Union No. 48 ("Union") filed a petition for unit clarification pursuant to 26 M.R.S.A. Section 966(3). A hearing on the petition was held on December 20, 1983 in Augusta, Maine. The Union was represented by one of its busi- ness agents, David L. Berg, and the Town of Wells was represented by its Town Mana- ger, Fred T. Breslin. The union, by its unit clarification petition, seeks inclusion of the Wells Code Enforcement Officer into an existing bargaining unit composed of "all full- time patrolmen, detectives, corporals, and sergeants employed by the Wells Police Department, who are public employees." The Town of Wells ("Employer") opposes the petition on the grounds that the Code Enforcement Officer is a department and is, therefore, excluded from collective bargaining under 26 M.R.S.A. Section 962(6)(D). The Union presented Jeffrey C. Beaulieu, Code Enforcement Officer of the Town of Wells, as a witness at the hearing. The Employer presented Wells Chief of Police Robert E. Linscott as a witness in this proceeding. The following documents were admitted into the record as exhibits: Joint Exhibit No. 1 Job Description: Wells Code Enforcement Officer Joint Exhibit No. 2 Official Identification Cards issued to Jeffrey C. Beaulieu by Town of Wells (1) As a Special Police Officer (2) As a Code Enforcement Officer Joint Exhibit No. 3 Town of Wells Board of Personnel and Review; Revised Bylaws, Rules and Regulations [-1-] ________________________________________________________________________________ Joint Exhibit No. 4 Appointment of Jeffrey C. Beaulieu as Special Police Officer in and for the Town of Wells, Dated: May 21, 1980 Joint Exhibit No. 5 Minutes of Meeting of Wells Board of Selectmen of November 6, 1979 Board Exhibit No. 1 Copy of Summons contained in Summons Book issued to the Code Enforcement Officer by the Town of Wells Town Exhibit No. 1 1984 Budget Worksheet for Code Enforcement Officer Town Exhibit No. 2 Town of Wells Annual Report for the Year 1982 The parties were afforded full opportunity to present witnesses, to examine and to cross-examine the same, to present documents and other evidence, and to make argu- ment. JURISDICTION Teamsters Local Union No. 48 is the recognized bargaining agent, within the meaning of 26 M.R.S.A. Section 966(3), for a bargaining unit composed of "all full- time patrolmen, detectives, corporals, and sergeants employed by the Wells Police Department, who are public employees." The Town of Wells is the public employer, as defined in 26 M.R.S.A. Section 962(7), of the aforementioned employees as well as of the Code Enforcement Officer of the Town of Wells. The jurisdiction of the hearing examiner to hear this case and rule on the petition for unit clarification lies in 26 M.R.S.A. Section 966(1). FINDINGS OF FACT Upon review of the entire record, the hearing examiner finds: 1. Teamsters Local Union No. 48 is the recognized bargaining agent, within the meaning of 26 M.R.S.A. Section 966(3), for a bargaining unit composed of "all full- time patrolmen, detectives, corporals, and sergeants employed by the Wells Police Department, who are public employees." 2. The Town of Wells is the public employer, as defined in 26 M.R.S.A. Sec- tion 962(7), of the employees mentioned in paragraph 1 hereof as well as of the Code Enforcement Officer of the Town of Wells. -2- ________________________________________________________________________________ 3. The bargaining unit, mentioned in paragraph 1 hereof, was created on December 15, 1978 when an Agreement on Appropriate Bargaining Unit (MLRB Form 1) was filed with the Maine Labor Relations Board. Said agreement in- cluded the following job classifications of employees of the Wells Police De- partment together in the same bargaining unit: "Patrolmen, Corporals, and Sergeants." 4. The position of Code Enforcement Officer was in existance on December 15, 1978, said position was filled and its attendant responsibilities were carried out by an employee at that time. 5. The incumbent employee in the position of Code Enforcement Officer was appointed to said position for an unspecified term by vote of the Wells Board of Selectmen on November 6, 1979. On the same date and by vote of the same body, said individual was also appointed to the positions of local Plumbing Inspector and Health Officer. 6. The employee mentioned in the preceding paragraph was appointed to the office of Health Officer, pursuant to the mandate found in 22 M.R.S.A. Section 451, and was appointed to the position of Plumbing Inspector, under the authority granted by 22 M.R.S.A. Section 42 (3-B) and 30 M.R.S.A. Section 3222. 7. Since the incumbent employee's appointment, mentioned in paragraph 5 supra, the workload of the Code Enforcement Officer has grown, as the result of the enactment of new federal, state, and local environmental, health, safety, and land use statutes, regulations, and ordinances as well as the expansion of the scope of coverage of pre-existing standards. 8. Since the appointment of the incumbent employee and before that date, the duties and responsibilities of the Code Enforcement Officer position have remained the same. Said duties and responsibilities include: using independent professional judgment in enforcing zoning, sub-division, and building construction ordinances as well as issuing and enforcing building, plumbing, health, or other permits required by local, state, and federal laws. The Code Enforcement Officer is responsible for the day-to-day operation of the Code Enforcement Office and for maintenance of the records thereof. 9. Since prior to the creation of the bargaining unit, noted in paragraph 1 above, the Code Enforcement Officer and the members of said unit have had rare -3- ________________________________________________________________________________ professional contact, during the course of execution of their respective respon- sibilities. 10. The Code Enforcement Officer is, in the job description applicable thereto, designated as being a "law enforcement officer with specific designa- tion as enforcement officer" for the various areas noted in paragraph 8 hereof. The job description also states: "A Code Enforcement Officer is involved in the enforcement of local, state and federal laws, relating to the protection of public health, welfare and land use, which are regarded as not being primary function of municipal police departments." 11. Although the incumbent Code Enforcement Officer is a Special Police Officer for the Town of Wells, his authority as such an officer is limited to enforcement of the various laws noted in paragraph 8, supra. The Code Enforcement Officer has never made an arrest nor has he ever issued a summons to appear in Dis- trict Court, although he was issued a regular Wells Police Department summons book upon being appointed to his current office. The Code Enforcement Officer has neither a uniform nor a badge. 12. During emergencies and at other times, the Town of Wells has used Reserve Police Officers to replace absent regular officers or to supplement the efforts of said regular officers. The Town of Wells has never used Special Police Officers for these purposes. 13. The Code Enforcement Officer reports directly to and is under the super- vision of the Town Manager while members of the bargaining unit, mentioned in para- graph 1 hereof, report to and are directed by the Chief of Police. The Chief of Police has no authority or control over the work activities and responsibilities of the Code Enforcement Officer. 14. The Code Enforcement Officer receives a salary, based upon an hourly wage rate, as remuneration for his professional services to the Town of Wells. As a salaried employee, the Code Enforcement Officer has not been paid an overtime premium for time worked over and above his standard work week. Police Officers, who are in- cluded in the bargaining unit, noted in paragraph 1 supra, are paid an hourly wage and receive a 50% premium per hour, for time worked above and beyond their standard work week. 15. Both the Code Enforcement Officer and the Police Officers, mentioned in the preceding paragraph, work forty hours per week as their standard work week. -4- ________________________________________________________________________________ Prior to the certification of a bargaining agent and the negotiation of the first collective bargaining agreement for the bargaining unit mentioned in paragraph 1 above, the terms and conditions of employment for both the Code Enforcement Officer and the bargaining unit police officers were determined and controlled by the Town of Wells Board of Personnel and Review Bylaws, Rules and Regulations. Now, said Town policy only applies to the Code Enforcement Officer while the terms and conditions of employment for the bargaining unit police officers are determined and controlled by the applicable collective bargaining agreement. 16. Under the provisions of 26 M.R.S.A. Section 2805, full-time police officers, including the employees who constitute the bargaining unit mentioned in paragraph 1 hereof, must complete the basic training course offered by the Maine Criminal Jus- tice Academy as a condition of continued employment. On the other hand, the Code Enforcement Officer has not, nor is he required, to attend said course. The Code Enforcement Officer's professional training is in the areas of health, safety, land use controls and the other specialized areas mentioned in paragraph 8, supra. 17. The Code Enforcement Officer's office and the police department are both located in the Wells Town Hall, however, the offices are located in separate areas of said building. 18. The incumbent Code Enforcement Officer expressed a desire to be included in the bargaining unit mentioned in paragraph 1 above. 19. The Code Enforcement Officer's work responsibilities and duties include: preparing and submitting the Code Enforcement Officer's annual budget to the Town Manager, supporting said budget before the Budget Committee and the Wells Board of Selectmen, and administering the Code Enforcement program for the Town of Wells. 20. The Code Enforcement Officer is viewed as being a department head by the Town of Wells and, like other department heads, submits an annual summary of his activities which is included in the published Town of Wells Annual Report. 21. The Town of Wells and Teamsters Local Union No. 48 have attempted and were unable to agree on the modification in the composition of the bargaining unit, noted in paragraph 1 supra, which was sought in the within proceeding and there was no question concerning representation involved herein. -5- ________________________________________________________________________________ DECISION The Statute which authorizes and controls unit clarification proceedings is 26 M.R.S.A. Section 966(3). Said law reads as follows: "Unit clarification. Where there is a certified or currently recognized bargaining representative and where the circumstances surrounding the formation of an existing bargaining unit are alleged to have changed sufficiently to warrant modification in the composi- tion of that bargaining unit, any public employer or any recognized or certified bargaining agent may file a petition for a unit clari- fication provided that the parties are unable to agree on appropriate modifications and there is no question concerning representation." The Maine Labor Relations Board has, recently, interpreted the identical language, to that quoted above, which appears in the State Employees Labor Relations Act, 26 M.R.S.A. Sections 979, et seq. The Board stated: "The Statute raised, as a threshold issue, the question of whether the circumstances, existing at the time that a bargaining unit was created, have varied enough to mandate an alteration in the compo- sition of said unit. The allegation of a change in circumstances carries with it a duty to establish that said change has, in fact, transpired. AFSCME, Council 74 and City of Bangor, Unit Clarifi- cation Report, p. 4 [79-UC-05] (3/6/79), rev'd on other grounds, AFSCME, Council 74 and City of Bangor, MLRB Case No. 79-A-02 (10/17/79). The petition- er, in unit clarification proceedings, bears the burden of alleging the requisite change and, further, of establishing the occurrence of said change in the unit then at issue. Since the State was the petitioner in the unit clarification proceeding being reviewed, herein, the State had the duty of avering and substantiating the existence of sufficient change, in the circumstances surrounding formation of the relevant bar- gaining units, to warrant modification of said units." State of Maine and Maine State Employees Association, Interim Order, MLRB No. 82-A-02, p. 16 (June 2, 1983). The identity of the unit clarification sections' language in the State and the Municipal Acts militates the adoption of the Board's above-cited interpretation herein. In this matter, the Union has failed to substantiate the requisite changed circumstances needed to warrant modification of the composition of the bargaining unit in question. The record reveals that the Code Enforcement Officer's work- load has increased since the formation of the bargaining unit at issue. Said in- crease is due to the adoption of new federal, state and local environmental, health, safety, and land use statutes, regulations, and ordinances as well as the expan- sion of the scope of coverage of similar pre-existing standards. The fundamental -6- ________________________________________________________________________________ nature of the Code Enforcement Officer's position; performing inspections, issu- ing permits, and enforcing health, safety, and land use controls; has remained the same as it was prior to the creation of the bargaining unit in question. Furthermore, the professional relationship between the Code Enforcement Officer and members of the police department bargaining unit has remained constant, since prior to creation of said unit. The Code Enforcement Officer has minimal professional contact with the police officers and that has consistently been the case. Since the Union has failed to establish the requisite substantial change in circumstances, the unit clarification petition herein could be dismissed solely on that ground. The parties have, however, fully litigated all of the relevant issues, herein, therefore, said issues will be addressed in this decision. The second major issue raised in this unit clarification inquiry was whether or not the Code Enforcement Officer shared a clear and identifiable community of interest with the members of the police department bargaining unit. Title 26 M.R.S.A. Section 966(2) provides that no bargaining unit may be created or modi- fied unless the members of the resulting unit share "a clear and identifiable com- munity of interest." In Council 74, AFSCME and City of Brewer, MLRB No. 79-A-01, pp. 3-4 (Oct. 17, 1979), the Maine Labor Relations Board outlined eleven criteria to be used in evaluating the presence or absence of community of interest among a group of employees. The Board enunciated said factors 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 or employment; (5) similarity 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 affec- ted employees; (10) extent of union organization; and (11) the public em- ployer's organizational structure." The following factors militate the undersigned hearing examiner to hold that the Code Enforcement Officer does not share a clear and identifiable community of in- terest with employees in the police department bargaining unit: (1) although both the Code Enforcement Officer and the police officers are "law enforcement officers," the laws enforced by the former are fundamentally civil in nature while the latter enforce the criminal statutes; (2) the Code Enforcement Officer is supervised by the Town Manager while the police officers are supervised by the Chief of Police; (3) the Code Enforcement Officer is paid a weekly salary and is not paid overtime -7- ________________________________________________________________________________ premium while the police officers are paid on an hourly basis and do receive a premium for overtime work; (4) the number of hours worked by each is the same each week, however, the Code Enforcement Officer's benefits and terms and conditions of employment are derived from the Town's personnel policy while those of the police officers are controlled by the relevant collective bargaining agreement and they differ from those of the Code Enforcement Officer; (5) the qualifications, skills and training of each is very different with the Code Enforcement Officer being a professional in the areas of health, safety and land use control while the police officers are trained by the Maine Criminal Justice Academy in the areas of criminal law and procedures; (6) there is extremely limited professional con- tact or interchange between the Code Enforcement Officer and the police officers; (7) the Code Enforcement Officer's office and the police department are located in separate areas of the Wells Town Hall; and (8) within the public employer's organizational structure, the Code Enforcement Officer and the police officers are placed in two separate and distinct departments. The only factor supporting a finding of existence of community of interest is that the Code Enforcement Officer wishes to be included in the police department bargaining unit for purposes of collective bargaining. In light of the foregoing analysis, the hearing examiner concludes that no community of interest exists between the Code Enforcement Officer and the employees included in the police department bargaining unit. It would, therefore, be inappropriate to include the Code Enforcement Officer in said bargain- ing unit. The Union has argued that, if the Code Enforcement Officer is not placed in the same bargaining unit as the police officers, he should be placed in a separate, single-position bargaining unit. The Employer averred that the Code Enforcement Officer is a "department head," within the meaning of 26 M.R.S.A. Section 962(6)(D) and, therefore, is excluded from the scope of the Municipal Public Employees Labor Relations Act. The relevant test applied to evaluate the merit of the Employer's contention is as follows: "'The tests applied in prior decisions to determine whether an employee is a Section 962(6)(D) department or division head are 1) whether the employee is the administrator of the department or division, and 2) whether the employee is "appointed to office pur- suant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer," as specified in Section 962(6)(D). For example, in Teamsters Local 48 and City of Portland [78-UD-39] (Sept. 13, 1978), twelve City of Portland division -8- ________________________________________________________________________________ heads were declared to be Section 962(6)(D) division heads. The hearing examiner found that the division heads "are responsible for the day-to-day administration" of their divisions, which employed anywhere from 5 to 110 full-time employees, and that they performed the duties of "formulating and administering division policies and practices." In addition, the division heads were appointed to office pursuant to ordinance or statute for an unspecified term by the City Manager. Teamsters Local 48 and Boothbay Harbor Water System, Unit Determination Report, at 6 [82-UD-29] (May 11, 1982). It is important to note, at this juncture, 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. "The Welfare Director job classification at issue herein clearly meets the criteria set forth in the foregoing tests. The Welfare Director prepares the budget for her department, administers said department and the Municipal Public Assistance Program, interviews potential welfare recipients and makes independent decisions concerning their eligibility to receive assistance, and maintains the records of the Welfare Depart- ment. Secondly, the Welfare Director was appointed, pursuant to Title 22, M.R.S.A.'s Municipal General Assistance provisions, for an unspecified term by the Town Manager of the Town of Kennebunk. The undersigned hearing examiner, therefore, holds that the Welfare Director, in the employ of the Town of Kennebunk, is a department head, within the scope of Title 26 M.R.S.A. Section 962(6)(D). Since the Welfare Director is not a "public employee," said job classification must be excluded from the proposed bar- gaining unit." Teamsters Local Union No. 48 and Town of Kennebunk, Unit Determination Report, at 4 [83-UD-23] (April 27, 1983). As was the case with the Kennebunk Welfare Director, the Wells Code Enforcement Officer prepares the annual budget for his office, is responsible for administering the code enforcement program, and maintains the records for his office. The administration of the code enforcement program involves the exercise of independent professional judgment in enforcing zoning, sub-division, and build- ing construction ordinances as well as issuing and enforcing building, plumbing, health, or other permits required by local, state, and federal laws. Furthermore, the Employer views the Code Enforcement Officer as being a department head and, like the other department heads, the Code Enforcement Officer prepares an annual report which is included in the published Town of Wells Annual Report. Finally, the Code Enforcement Officer was appointed to serve an unspecified term by vote of the Wells Board of Selectmen. Applying the Section 962(6)(D) standard to the facts herein, the hearing examiner must hold that the Wells Code Enforcement Offi- cer is a department head, within the meaning of said section. It would, therefore, -9- ________________________________________________________________________________ be inappropriate to include the Code Enforcement Officer within any bargaining unit. ORDER On the basis of the foregoing findings of fact and discussion, and by virtue of and pursuant to the powers granted in 26 M.R.S.A. Sections 966(1) and (3), it is ORDERED: The Petition for Unit Clarification filed by Teamsters Local Union No. 48, on November 3, 1983, be and hereby is dismissed. Dated at Augusta, Maine, this 26th day of January, 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 this report. -10- ________________________________________________________________________________