STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 94-UD-09
Issued: April 26, 1994
________________________________
)
RICHMOND EMPLOYEES ASSOCIATION, )
)
Petitioner, )
)
and ) UNIT DETERMINATION REPORT
)
TOWN OF RICHMOND, )
)
Public Employer. )
________________________________)
This unit determination was initiated on January 24, 1994,
when the Richmond Employees' Association (Association) filed a
petition for unit determination with the Maine Labor Relations
Board (Board) pursuant to 26 M.R.S.A. 966 (1988 and Supp. 1993)
and Board Unit Determination Rules 1.01 et. seq.[fn]1 The
Association's petition seeks a determination of the
appropriateness of a unit of employees of the Town of Richmond
(Town) described:
INCLUDED: All regular municipal employees -
Fourteen (14)
Classification(s) No. (estimated)
Highway Department 4
Police Officers 5
Town Office Workers 5
EXCLUDED: All other employees of the Town of Richmond.
On January 31, 1994, the Board received from the Town a petition
for election, and a petition which seeks a determination that the
____________________
1 The petition was served on the Town on January 14, 1994,
and was actually received by the Town on January 19, 1994.
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following unit is appropriate[fn]2 for the purposes of collective
bargaining:
INCLUDED: Bookkeeper/Deputy Treasurer/Deputy Tax
Collector, Police Sergeant, Patrol Officer,
Assistant Highway Foreman, Highway Equipment
Operator, Community Development Director,
Grants Administration Department RINOP[fn]3
Secretary.
EXCLUDED: Interim Town Manager/Treasurer/Tax
Collector/Clerk to Overseers of the Poor,
Administrative Assistant/Deputy Tax
Collector, Chief of Police, Highway Foreman,
Grants Administration Department Director.
The Town filed an expanded response to the Association's
petition with the Board on February 4, 1994. Proof of service of
the expanded response was received by the Board on February 18,
1994, establishing receipt by the Association on February 15,
1994. I construe the expanded response to amend the Town's
original responsive petitions. The expanded response contends,
as did the Town's original petitions, that the Town Manager and
Grants Director are excluded as " 962(B) (sic) Supervisor[s],"
that the Highway Foreman and Chief of Police are excluded as
" 962(D) (sic) Supervisor[s]" and that the Administrative
Assistant/Deputy Tax Collector is excluded as a " 962(C) (sic)
Supervisor."[fn]4 The expanded response avers, in addition, that the
____________________
2 On February 4, 1994, the Town filed photocopies as proof of
service, establishing receipt of the petitions by the Association
on January 31, 1994. The petitions and their attachments
constitute a response to the Association's unit determination
petition.
3 RINOP (Richmond Innovative Neighborhood Oriented Policing).
4 Title 25, Section 962 does not exclude supervisors from the
coverage of the MPELRL. Subsection (5) defining professional
employees and subsection (6) defining public employees both
contain paragraphs designated (B), (C) and (D). I have considered
the Town's contentions to address Section 962(6)(B), (C) and (D)
exclusions.
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Town's four part-time workers are "on-call constables whose
services are used randomly." The expanded response states that
the Town "challenges the showing of interest" but states no
specific ground for the challenge as is required by Rule 1.06(C).
The expanded response suggests an appropriate unit configuration
identical to that set forth in the Town's prior unit
determination petition. On February 10, 1994, the Board received
a letter from the Town which forfeits the right to an Association
response to the Town's petition. The Town's letter also states
that the "Petition for Unit Determination Election" and the
Town's February 4th letter "collectively" are the Town's response
to the Association's petition.[fn]5
Upon due notice, an evidentiary hearing of the issues raised
by the petitions and response was conducted by the undersigned at
the Board's offices in Augusta, Maine, on March 3, 1994. No one
requested to intervene in the proceeding or otherwise requested
to participate as an interested party. Prior to commencement of
the hearing, the parties met with the hearing examiner in
informal conference in order to determine whether any factual
and/or legal stipulations were possible. The stipulations that
were reached in those discussions as well as stipulations reached
in off-the-record discussion during the hearing have been
incorporated herein. The Association is represented in this
matter by Richard Mersereau. The Town is represented in this
matter by Michael Wing of the Maine Municipal Association. At
hearing the parties were afforded the opportunity to present
evidence and argument and the opportunity to cross-examine
witnesses on all disputed issues, except for issues respecting a
____________________
5 The letter filed on February 10, 1994, was apparently
served on the Association by mail on February 9, 1994. It should
be noted that all the issues ultimately determined in this report
are either raised in the Town's initial responsive petitions, or
were assented to by the Association, though raised in neither the
original responsive pleadings nor in the expanded response.
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sought-after "confidential" exclusionary designation.
The Association presented as witnesses Highway Foreman
Richard Lachance, and Grants Administration Department Director
Nancy Churchill. The Town presented as its witness Interim Town
Manager Jay Robbins. The following documents were admitted into
evidence without objection:
Petitioner's Exhibit No. 1. A two-page exhibit entitled
Richmond Employees Association
Richmond Job Description Confusion.
Petitioner's Exhibit No. 2. A five-page document entitled
Dick's Schedule Monday 1/31/94.
Employer Exhibit No. A fifteen-page composite exhibit
consisting of a petition dated
Feb. 6, 1946. An announcement of a
Special Town Meeting on
February 13, 1946, dated February
6, 1946. A Notice of Town Meeting
to be held March 4, 1946. Cover
letter referring to meeting of
March 5, 1946 with attached
Articles, May 6, 1946. Town
Officers Oath executed May 6, 1946.
An announcement of Town Meeting on
March 3, 1947. A record of the
Evening Session Town Meeting March
4, 1947. A record of a Special
Town Meeting, August 21, 1947. A
Town Officers' Oath dated Jan. 27,
1948. A letter dated March 18,
1948, to J. W. Randlette. Notices
of reappointment of John R. Perkins
dated April 9, 1946. A May 12,
1942 certification of the
appointment of E. L. Welch as Town
Manager of Richmond.
Employer Exhibit No. 2 The 1985 twenty-nine page Town of
Richmond Personnel Manual.
Employer Exhibit No. 3 Selectmen's meeting minutes
January 28, 1993.
Employer Exhibit No. 4 Seven pages of photocopies of 30-A
M.R.S.A. 2606 & 2607, 2631
through 2639.
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Employer Exhibit No. 5 Page 354 of the 1993 Supplementary
Pamphlet to Volume 14A of the
M.R.S.A.
Employer Exhibit No. 6 The two-page minutes of the
December 17, 1992, Selectmen's
Meeting.
Employer Exhibit No. 7 The July 25, 1985, minutes of the
Regular Selectmen's Meeting.
Employer Exhibit No. 8 A May 27, 1993, Certificate of
Appointment of Richard LaChance as
Road Commissioner.
Employer Exhibit No. 12 A nine-page composite exhibit
consisting of the February 25,
1993, Selectmen's Meeting Minutes
and the 2/18/93 Executive Summary
and Draft 3 Road Management Policy.
Employer Exhibit No. 13 The two-page Minutes of the
Selectmen's Meeting of October 21,
1993.
Employer Exhibit No. 14 A six-page composite exhibit
comprised of a five-page document
entitled Amendment to the Agreement
Between the Town of Richmond and
Nancy J. Churchill, and a one-page
document entitled An Agreed to
Interpretation of the Compensation
Section of the Amendment to the
Agreement Between the Town of
Richmond and Nancy J. Churchill.
The following exhibits are hereby admitted into evidence
over the Association's objection:
Employer Exhibit No. 9 A three-page Highway Foreman job
description.
Employer Exhibit No. 10 A two-page Administrative
Assistant/Excise Tax Collecter
(sic) job description.
Employer Exhibit No. 11 A listing of Town of Richmond
Hourly Rates of Pay as of March 3,
1994.
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Both parties filed briefs, the last of which was received on
March 14, 1994.
STIPULATIONS
The parties reached the following stipulations:
1. The Town of Richmond is a public employer within the meaning
of 26 M.R.S.A. 962(7) (1988).
2. The Richmond Employees Association is a lawful organization
which has as its purpose the representation of employees in their
employment relations with the Town of Richmond within the meaning
of 26 M.R.S.A. 962(2) (1988).
3. The following employees should be excluded from any unit
found appropriate:
1. Town Manager
2. Police Chief
3. Animal Control Officer
4. Code Enforcement Officer
5. Harbor Master
6. Public Plumbing Inspector
7. On-call Reserve Police Officers
8. Executive Director High School Student Committee
9. Dump Attendant
4. The following employees share a community of interest and
should be included in any unit found to be appropriate:
1. Bookkeeper/Deputy Treasurer/Deputy Tax Collector
2. Police Sergeant
3. Patrol Officers
4. Assistant Highway Foreman
5. Highway Equipment Operators
6. Community Development Director
7. Grants Department RINOP Administrative Assistant
5. The Town Manager and the Police Chief are appropriately
excluded from the proposed unit on the basis of their department
head status pursuant to 26 M.R.S.A. 962(6) (D) and 966 (1988).
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POSITIONS OF THE PARTIES
The Town contends that the Administrative Assistant/Deputy
Tax Collector should be excluded from any unit found appropriate
by operation of 26 M.R.S.A. 962(6)(C) (1988). More
specifically, the Town contends, based on its intended future
confidential collective bargaining use of the Administrative
Assistant/Deputy Tax Collector and its alleged entitlement to
exclusionary designation of at least one employee as a
confidential, that the Administrative Assistant/Deputy Tax
Collector should be found confidential and thus not to be a
public employee within the meaning of the MPELRL.
The Town contends that the Highway Foreman (Foreman) has
been duly appointed by Town authorities as Road Commissioner/
Highway Foreman and is appropriately excluded under 26 M.R.S.A.
962(D) (1988). The Town also contends that the Director of the
Grants Administration Department (Director) operates under a
contract with a specified term and is excluded from collective
bargaining by operation of 26 M.R.S.A. 962(B) (1988). Finally,
the Town contends that the Foreman and Director do not share a
community of interest with employees mutually agreed to be
appropriately included in the bargaining unit.[fn]6
The Association disputes all of the above-listed contentions
of the Town and seeks inclusion in the unit of all three
positions. The Association also contends that untimely filing of
the Town's response establishes the unit description, as that
petitioned-for, by default.
____________________
6 The Town, with the assent of the Association, amended its
response at hearing to include an assertion that the Highway
Foreman and the Director of the Grants Administration Department
do not share a community of interest with employees in the
sought-after unit within the meaning of 26 M.R.S.A. 966 (1988 &
Supp. 1993)
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LIMITATION OF THE RECORD
In light of the Board's longstanding refusal to permit
exclusionary designations based on prospective duties, the Town
was permitted only a proffer of evidence respecting its intended
future use of the Administrative Assistant.
JURISDICTION
I possess jurisdiction to hear this matter and to render a
determination of the appropriate unit by virtue of 26 M.R.S.A.
966 (1988 & Supp. 1993)
FINDINGS OF FACT
I accept the parties' stipulations and upon review of the
entire record, make the following additional findings of fact:
I. Administrative Assistant/Deputy Tax Collector
The Acting Town Manager presently intends to use the
Administrative Assistant/Deputy Tax Collector to perform all
clerical duties and to provide all administrative assistance
having a nexus with collective bargaining matters, which may
become necessary as a result of the certification of a collective
bargaining agent of Town employees in any unit found appropriate.
II. Grants Administration Department Director
From March, 1989, until December 31, 1993, Nancy Churchill
served as Town Manager.[fn]7 She presently directs the Grants
Administration activities of the Town. In that capacity
Churchill is responsible for the acquisition and administration
of a variety of grants for the Town of Richmond. Churchill's
present working relationship with the Town is not formally
____________________
6 The Town of Richmond has a "Town Manager" form of
government.
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titled. She became a Grants Administrator as the result of
increased grant workload while she was Town Manager and a
subsequent decision by the Town Selectmen to establish a
contractual relationship with Churchill which would allow her
remuneration to be derived directly from grant awards. The
contract was accepted by the Town Board of Selectmen on
October 21, 1993, by a 4 to 1 vote.
The contract between Churchill and the Town, effective
January 1, 1994, through December 31, 1997, states that the
agreement is "for the purpose of providing the services of an
independent contractor to the Town, and also to provide the Town
with consultant services and for the purposes of procuring and
administering grant programs which benefit the Town of Richmond."
The contract additionally provides to Churchill the "full
cafeteria plan of benefits or its cash equivalent at Churchill's
discretion," and 25 days vacation. Churchill receives, by
contract, reimbursement for $500 of her job related expenses, in
addition to "[a]ll actual and reasonable business costs,
including mileage, training, travel, professional fees and dues."
Churchill receives comp time or compensation in lieu of overtime
benefits.[fn]8 The contract specifies that Churchill "shall be
compensated for independent contractor services, consultant
services, grant procurement and grant administration services at
the rate of $40.00/hour unless otherwise agreed to by Churchill."
However, the contract also provides that "[f]or grant procurement
services, Churchill will be compensated $10,000 annually . . .
for planning, grant writing and coordination of the proposal."
The contract requires that Churchill acquire a minimum 3-year
average of $32,000 in grants, requires her to perform obligations
under the contract before any other employment and permits
Churchill to "delegate all or part of the duties,
____________________
8 Apparently Churchill's pay or comp for overtime worked is
at straight time rates.
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responsibilities and compensation for all grant administration
and consultant services provided to the Town."
The contract states that Churchill "shall be considered an
employee of the Town." The Town's Personnel Manual is
incorporated in full into the contract, by reference. The Town
contractually provides Churchill with unemployment compensation,
workers' compensation, liability insurance coverage "and all
other benefits and insurance protections provided to municipal
employees." Although the contract states that the
"[a]dministration of and consulting on grants is subject to the
rules and regulations of the grantors," the Selectmen retain the
authority to approve all grants prior to their submission and
thereby retain control, through prior approval, of Churchill's
grant administration and consulting. The contract specifies a
maximum of three one-year terms renewable at Churchill's option
and provides that salary and benefits may be renegotiated at each
renewal. The contract provides that it may be terminated by
Churchill or the Town on 120 days' notice. Churchill waives, by
contract, her right to dismissal for cause except that, if the
Town terminates on 120 days' notice without cause Churchill is
entitled to 1/2 "of the amount she would have received for
compensation and benefits for the remaining term of th[e]
agreement."
Churchill receives pay from grantors and unspecified
"equivalent" additional compensation from the Town. Churchill
presently submits hours for work on three grants. The present
maximum hourly rate paid to Churchill from any single grant is
$30/hour. She is paid that rate by certain unspecified grants
and gets nothing, in the form of hourly compensation, from
others. Churchill administers some grants for free. She
continues to receive a percentage compensation from certain
unspecified older grants. She is presently also "working on
several other grants that were awarded last year and . . . some
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[from] the year before . . . under a different contract."
Examples of the variety of grants worked on by Churchill are:
A Maine Justice Assistance Council grant for community
policy, several community development block grants, one
for economic development, one for public services, one
for general purpose planning, an America the Beautiful
conservation grant, an Office of Substance Abuse Drug
Prevention grant and a "couple other little ones."
Churchill reports to and is supervised by the Town Manager and
expects that the Town Manager will be completing a performance
evaluation of her. Churchill presently gets paid hourly
benefits, an annual $10,000 stipend at the beginning of the year
"to defray expenses and time," plus an "equivalent in benefits."[fn]9
A past attempt to base her compensation on a percentage basis
"got tremendously awkward."
Churchill's primary function is not to manage and direct
other employees and she has no personnel policy or management
policy responsibility. Although she now works at home and at the
Town Office, in the future Churchill will have an office behind
the high school which she will share with two other Town
employees. The Grants Department includes a Director of
Community Development[fn]10 position and a part-time Secretary.[fn]11
Churchill would hire any replacement for either of these
presently occupied positions. As Grants Administrator, Churchill
has never evaluated the two part-time grants employees whose work
____________________
9 Churchill has opted to receive "cash compensation for the
equivalent to benefits, the same amount the employees would get
for benefits."
10 The last full-time paid Community Development Director
received $9.00/hour. The part-time position pays the same rate.
11 Jackie Jordan, the administrative assistant for RINOP,
earns $8.75/hour.
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she directs.[fn]12 One of these part-time employees works less than
10 and the other less than 20 hours per week.
III. Highway Foreman
Richard Lachance has served as the Town of Richmond's
Highway Foreman since 1985 and has been Richmond's Road
Commissioner since 1992. The Highway Foreman "consults the Town
Manager in determining major policies to be observed in the
conduct of highway operations." The Town Manager is the chief
executive and administrative official of the Town of Richmond.
At the Town Selectmen's meeting of July 25, 1985, Ronnie
Belanger[13] "briefed the board on the interviews and his selection
[for an undefined term], pending board approval, of Dick Lachance
as the new Highway Foreman. Starting 7/29/85 at $8.00 per hour
with appointment."[fn]14 There is no indication of board approval;
however, since Lachance has served in this capacity since that
year, it is reasonable to assume that the Town Selectmen approved
Belanger's selection. Lachance was appointed Road Commissioner
by 5-0-0 vote of the Town Selectmen in meeting on December 17,
1992. During Churchill's tenure as Town Manager, the Town's
employees worked so autonomously that she was able to devote only
20 hours to her town management responsibilities. When Churchill
took over the position of Town Manager, Lachance was an hourly
paid overtime eligible employee. Churchill evaluated his job, as
____________________
12 Due to Churchill's brief tenure in this department, I
accord no significance to the lack of evaluation of subordinates.
Additionally, because there is no indication of how long either
of these employees has been employed, I accord no significance to
the apparent lack of evaluation of them by Churchill as Town
Manager.
13 There is no direct indication that Belanger was the Town
Manager at this time.
14 Title 30-A M.R.S.A. 2636(5) states, in pertinent part,
that "[t]he Town Manager . . . [s]hall appoint, subject to
confirmation by the selectmen, supervise and control the heads of
departments under the control of the selectmen."
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she states, "to see if it could be made into an exempt position,
because clearly if he had managerial responsibilities and that
was the majority of his work, we could force that issue and get
the overtime out of the budget." The evaluation showed that
Lachance primarily performed non-managerial labor. The Highway
Foreman's job description states that "[g]reater than 50% of work
performed is non-exempt by Fair Labor Standards." Thereafter,
ostensibly to increase Lachance's managerial skills, Churchill
sent Lachance to (unspecified) seminars "to help him improve his
technical skills" and worked with Lachance respecting the use of
the Road Surface Management System (RSMS) and complaint handling.
Churchill was responsible for the appointment of Lachance as Road
Commissioner. To reward Lachance for his additional responsibil-
ity, Churchill asked the Town of Richmond to transfer to him the
title, "totally inoperative . . . in the Town of Richmond,"[fn]15 of
Road Commissioner. Churchill, the only witness at hearing with
personal knowledge of the basis of this appointment, states, with
respect to the Road Commissioner title, that:
[I]t was a nominal title, and I didn't really--I didn't
have--I don't know how to say it--I was town manager,
so I had my responsibilities through Dick as the
highway department.
Churchill resigned as Road Commissioner and appointed Lachance as
her successor. His function "for all intents and purposes" did
not change "one iota."
In the morning of each workday, the Highway Department
members meet and discuss what needs to be done and how it is
going to be done. The crew jointly decides on the allocation of
the day's work. Lachance has the final say in the performance of
Highway Department duties and works side by side with the highway
____________________
15 Churchill's stated belief, that the title is only
appropriate where the holder directs contract employees who
perform highway work for the town, was not disputed by the Town.
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crew "as an Equipment Operator or a Truck Driver or whatever
needs to be done." In addition to exercising general supervisory
authority over the Highway Department, Lachance "[p]erforms
skilled work and operates machinery as necessary." There are
four snowplows in the Department and Lachance drives one of them.
He also operates graders, loaders and other machinery and
equipment. There is no formal yearly schedule of Highway
Department work. Lachance does not make or implement decisions
in the area of personnel policy on his own. Lachance "normally
[has] to discuss these matters with the Town Manager." For the
last two years, Lachance has annually evaluated the people in his
department for the Town Manager. There is no indication of the
use of these evaluations respecting subordinates' wages, hours or
terms and conditions of employment. The Town Manager then takes
"appropriate actions . . . such as raises or anything else."
Lachance is "responsible for what takes place within the highway
department" but "[t]he Town Manager has always had the final say
about what goes on."
Draft 3, dated 2-18-93, of the Town's Road Management Policy
states that "the extensive road knowledge of the Road
Commissioner is of vital importance and should be used in
conjunction with the RSMS to develop a management program." The
Draft also says that the "Road Commissioner with the assistance
of the Town Manager, will be responsible for formulating the
budget for the Highway Department."
Lachance tenders a complete preliminary budget request for
the highway department "which goes through the Town Manager for
final approval." The Town Manager ordinarily determines what of
each department's budget gets submitted to the Selectmen. Gas
expenditures within the budgeted annual allocation are the sort
of expenditures which the Highway Foreman typically makes. The
Town's payroll is authorized by the Town Manager acting in the
capacity of Town Treasurer. The budget is "basically [a] paving
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. . . and overall operating budget." The paving budget is
determined according to the RSMS, in response to requests for
paving. Lachance is "not too much up on" the RSMS. The RSMS is
a computerized tool for assessing what the status of a
municipality's roads is and for plotting the financial
requirements for their repair. The RSMS has "only been
implemented in a couple years, and the last time it was updated
the assistant foreman and another [unspecified] person did the
upgrading."
Three people have been hired into the Highway Department
during Lachance's tenure as Highway Foreman and prior to his
appointment as Road Commissioner. Lachance participated in the
interview and selection of each of these three hires. The final
approval came from the Town Manager. Lachance assumes his
opinion was important in these hiring decisions. His
recommendations were followed. There has been no disciplinary
action taken by Lachance. One individual who was hired as an
Equipment Operator/Assistant Foreman was not given his Assistant
Foreman title until he had been at the Town for an unspecified
period of time. Lachance was not instrumental in "seeing that he
was upgraded to an Assistant Foreman." Lachance possesses the
authority to require overtime. Lachance does not possess the
authority to make "major" purchases. It is Lachance's
responsibility to see that equipment is maintained. In the last
two months, Lachance has made no major decisions at the highway
department. Lachance is paid $14.75/hour. The Police Chief
earns $15.25, Patrolmen earn varying amounts between $8.50 and
$11.75, other Highway Department employees presently earn either
$9.60 or $11.60/hour, the Administrative Assistant earns
$9.00/hour and the Bookkeeper earns $9.10/hour. Lachance shares
an undefined "wage and insurance . . . cafeteria plan of benefits
with other employees." Lachance consults with the Town Manager
on highway matters variously from daily to every other week.
Lachance does not have the authority to suspend an employee or
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dock an employee's wages without consulting with the Town
Manager.
The Town's Personnel Policy states in section 2-4 that in
the selection of employees "[f]inal appointment will be made by
the Town Manager, except that in the case of Department Heads and
Police appointments Confirmation of the Selectmen is required."
The Town's Personnel Policy provides in section 2-5 respecting
Appointment that:
There are three types of appointments in the filling of
vacancies: permanent, annual and temporary:
A. Permanent Appointment. A permanent
appointment is for an indefinite period of time. Every
permanent employee will serve a probationary period of
one year.
B. Annual Appointment. Annual appointment is one
which automatically expires at the following Annual
Town Meeting held in June.
C. Temporary Appointment. When a position or
vacancy is limited in duration, the Town Manager may
appoint the best qualified candidate to the position
who will accept employment under such conditions. Such
appointment will be for a specific period of time.
The Personnel Policy states that Department heads are to refer
problem situations to the Town Manager for disciplinary action.
Department heads or the Town Manager may issue oral or written
reprimands but only the Town Manager may place employees on
disciplinary probation, suspend or discharge employees. The
Town's grievance procedure provides for three stages corre-
sponding to the levels of Department Head, Town Manager, and
Board of Selectmen, respectively. Under the Personnel Policy,
the Town Manager and Department heads establish work schedules,
and physician's certifications for absences greater than two days
must be presented to the Town Manager. The granting of comp time
requires Town Manager approval. Department Heads are tasked by
the Personnel Manual to evaluate employees, to discuss the
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evaluation with the rated employee and to meet with the Town
Manager to review the same. Leave approval and promulgation of
job descriptions are the province of the Town Manager.
Employees generally have the following "[v]acation days per
years of service":
0-5 1 day per month 12 days annually
6-10 1 1/4 days per month 15 days annually
11-15 1 1/2 days per month 18 days annually
16-20 1 3/4 days per month 21 days annually
20+ years 2 days per month 24 days annually
DISCUSSION
I. The Timeliness Issue
The evidentiary hearing record reflects the following
reference with request to the timeliness issue:
Also in prehearing discussions a number - - a number
of matters were taken up which will simplify our
proceeding today and I would like to put those in the
record. The record should reflect that our prehearing
discussions obviated any considerations of untimeliness
of the filing of the petition; there is no pending motion
with regard to dismissal of the response either on the
basis of timeliness.
Although the issue of timeliness of the response was not
preserved in the record, I will address the contentions of the
Association that the response was not timely filed, and that the
Town should therefore "be deemed to have agreed to the
appropriateness of the unit as proposed by the [Association]."
The Association's brief avers that the Association mailed
its original petition to the Town on January 14, that it was
received by the Town on January 19 and that the Association
received the Town's response on February 4, 1994, "more than the
ten days required under the rule which states that failure to
comply shall result in the establishment of the unit requested by
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the petitioner." The Association brief states in this regard, in
pertinent part:
The Association believes the Hearing Examiner was in
error when he ruled that MLRB Rule 1.08 when he stated
that the filing of the petition was timely when the
evidence is clear that more than 10 days had elapsed
after the petition was received by either the Association
or the Board. Defining workdays for all people to be
only State workdays is likewise erroneous because
virtually no one outside state government recognizes
those so called shut down days as universal.
CONCLUSION
We ask that the positions of highway foreman, grant
manager, and administrative assistant be included with-
in the bargaining unit proposed by the Association
excluded by stipulation at the hearing.
As to the timeliness issue we believe the Hearing
Examiner is in error both as to the dates and the ten
day rule of the reply in this matter deserves clari-
fication because of the confusion over work days that
apply in the counting when no one outside of state
government knows nor cares about rules that apply to
some but not all state workers. Finally, how would
one establish the response date if there is no require-
ment of service to MLRB, and only after the Petition
has been served on the other party. We believe this
employer failed to meet the ten day reply by at least
three days regardless of state "days".
The Board's Unit Determination Rules provide, with respect to the
filing of a response, as follows:
1.08 Response to Unit Determination Petition.
(A) Within ten working days of the receipt of a unit
determination petition, each other party shall file a
written response with the Board, with service on all
other parties, indicating whether it agrees that the
unit proposed by the petitioner is appropriate. A
response to an amended petition shall be filed within
ten working days of the service of the amendments.
* * * *
(F) If no response is filed by a respondent
within ten working days after the date of
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filing of a petition, or within an extension
of time allowed by the Executive Director or
the Director's designee, the respondent will
be deemed to have agreed to the
appropriateness of the unit as proposed by
the petitioner.
The Board's rules provide with respect to the definition of
working days, as follows:
7.02 Definition of Working Days. (A) Working Days
Defined--"Working days" shall mean those days when
State offices in Augusta are open for business.
The Board's Rules provide in the General Provisions, as follows:
7.03 Filing and Service. Filing of a submission or
paper with the Board is considered to be complete
on the date it is received by mail or in-hand
delivery by the Board at its offices in Augusta.
Service is complete when the paper is mailed to
the party or the party's attorney, upon in-hand
delivery to the recipient or by delivery to the
recipient' s office.
The conflicting deadlines for the filing of responses set
forth in Rule 1.08(A) and (F) have existed since the Board's
rules were comprehensively revised in 1990. To resolve the
obviously conflicting deadlines, the Executive Director has
considered timely any otherwise sufficient petition which
satisfies the last occurring of the two deadlines. The record
establishes that the Town's responsive petitions were filed with
the Board and actually received by the Association on January 31,
1994. Because the responsive petitions were received by the
Association and filed with the Board four workdays[fn]16 after the
January 24, 1994 filing of the Association's original petition
with the Board, the Town response is timely.
____________________
16 January 28, 1994, was a state government shutdown day.
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II. Confidential Designation
The Town is correct in its contention that "in many if not
most cases 'confidential' supervisory employees need access to at
least one 'confidential' clerical employee, in order to carry out
their "confidential" duties."[fn]17 See State of Maine and Maine
State Employees Association, No. 82-A-02, Interim slip op. at 28,
6 NPER 20-14027 (Me.L.R.B. June 2, 1985). However, decisions
concerning appropriate unit placement of a particular position
must be based upon actual or past factual circumstances. See
Auburn Firefighters Association and City of Auburn, No. 83-A-07,
slip op. at 7, 6 NPER 20-15003 (Me.L.R.B. Dec. 5, 1983).
Testimony concerning intended future job duties is too
speculative. More specifically, the Board has stated:
In determining confidential employee status, we
consider the duties currently being performed by the
alleged confidential employee. We cannot base a
finding of confidentiality upon testimony which
projects what an employee's duties may be in the
future. In the event that a public employee's duties
change so as to imply a confidential relationship under
Section 962(6), the correct procedure is for the public
____________________
17 As a Board hearing examiner recently explained:
The legislative purpose embodied in [the 26 M.R.S.A.
962(6)(C)] exclusion is to avoid situations where
employees would be confronted by substantial conflicts
of loyalty between that owed to their employer and that
owed to their bargaining agent. Employees potentially
facing such conflicts of loyalty are those who, as an
inherent part of their job duties, have access to the
public employer's collective bargaining positions and
policies. Disclosure of such information to the
bargaining agent outside of the collective bargaining
process could provide the bargaining agent with unfair
leverage or advantage over the public employer and
jeopardize the latter's bargaining position. Town of
Fairfield and Teamsters Local Union No. 48,
No. 78-A-08, slip op. at 3 (Me.L.R.B. Nov. 27, 1978).
Lincoln Sanitary District and Teamsters Union Local 340,
No. 92-UC-02, slip op. at 12 (Me.L.R.B. Nov. 17, 1992).
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employer to file a Petition for Unit Clarification
pursuant to 26 M.R.S.A. 966(3) and in accordance
with . . . the Board's Rules and Procedures.
Waterville Police Department and Teamsters Local Union No. 48,
No. 78-A-06, slip op. at 4 (Me.L.R.B. Oct. 4, 1978). If a
bargaining agent is certified or recognized for the unit found
appropriate herein, the Town can protect its interests by
admonishing any intended confidential employee that non-
disclosure of all information with a labor relations nexus is a
condition of continued employment. MSAD No. 14 and East Grand
Teachers Association, No. 83-A-09, slip op. at 10, 6 NPER 20-
14036 (Me.L.R.B. Aug. 24, 1983). Commencement of an employee's
use in confidential matters having a labor relations nexus is a
sufficient basis upon which to immediately seek exclusionary
designation through Board Unit Clarification Proceedings. See
Orono Teachers Association/MTA/NEA and Orono School Committee,
No. 93-UC-01, slip op. at 9 (Me.L.R.B. Dec. 7, 1992); 26 M.R.S.A.
966(3) (1988) and Rule 1.16.
Exclusion of the Administrative Assistant/Deputy Tax
Collector by designation as confidential is, hereby, denied.
III. Standards for Unit Determination
Because the Town avers that the Highway Foreman and the
Grants Administrator do not share a community of interest with
employees in the agreed wall-to-wall[fn]18 unit, I shall now address
the standards to be applied in testing the Town's averment in
this regard. The rationale underlying the fashioning of
appropriate bargaining units based on considerations of community
____________________
18 The parties' prehearing discussions indicated that the
basis of the exclusion of the Animal Control Officer, Code
Enforcement Officer, Harbor Master, Public Plumbing Inspector,
Police Reserve Officers, Director of the Student Committee and
Dump Attendant was the on-call nature of their employment. No
finding of on-call MPELRL exclusion is expressed or implied in
this decision.
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of interest was recently set forth by a Board hearing examiner in
the case of East Grand Teachers Association/MTA/NEA and MSAD No.
14 Board of Directors, No. 92-UD-01, slip op. at 14-15 (Me.L.R.B.
Oct. 1, 1991). That discussion, which bears repetition here,
states as follows:
The lodestar that guides the creation of appropriate
bargaining units under the Municipal Public Employees
Labor Relations Law ("Act"), 26 M.R.S.A. ch. 9-A (1988
and Supp. 1993) is fostering an improved relationship
between public employees and their employer " . . . by
providing a uniform basis for recognizing the right of
public employees to join labor organizations of their
own choosing and to be represented by such organiza-
tions in collective bargaining for terms and conditions
of employment. 26 M.R.S.A. 961 (1988). The Supreme
Judicial Court has discussed the importance of the
bargaining [unit] in fulfilling the purpose of the Act
as follows:
The institutional purpose of the bargaining
unit, then, is to strengthen the bargaining
position of the employees as a group. It
does so procedurally by aggregating the
employees into a unit and thus providing the
basic mechanism for collective bargaining; it
does so substantively by defining the group
whose economic rights and benefits will be
governed by majoritarian processes. The
bargaining unit is, in short, a fundamental
element in the self-governing relation
between the public employee and his employer.
Indeed, under the National Labor Relations
Act, the coherent bargaining unit is
perceived as a necessary condition for
effectuating the national labor policy of
collective bargaining. Pittsburg Plate Glass
Co. v. NLRB, 313 U.S. 146, 61 S.Ct. 908, 85
L. Ed. 1251 (1941). In light of the role
played by the bargaining unit, we likewise
believe that the two fundamental purposes of
the MPELRL--freedom of employee self-
organization and voluntary adjustment of the
terms of employment--are best effectuated
through the creation of coherent bargaining
units composed of employees who have "an
identifiable community of interest" in the
subjects controlled by the collective
bargaining agreement.
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Lewiston Firefighters Association v. City of Lewiston,
354 A.2d 154, 161 (Me. 1976). Collective bargaining is
a response to the inherent inequality of bargaining
power between a single employee and her or his
employer. Collective bargaining attempts to level the
playing field and empower individual employees in the
negotiating process by providing a mechanism through
which an employee can coordinate his or her bargaining
proposals with those of co-workers with whom the
employee shares similar terms and conditions of
employment. The Act explicitly recognizes that
appropriate bargaining units are composed of employees
who share a "community of interest" and does not
condition employees' unit inclusion on whether they
share identical terms and conditions of employment.
26 M.R.S.A. 966(2) (1988).
The Board has addressed the duty of hearing examiners to
assess whether a community of interest exists among prospective
fellow unit members as follows:
Title 26 M.R.S.A. 966(2) requires that the hearing
examiner consider whether a clear and identifiable
community of interest exists between the positions in
question so that potential conflicts of interest among
bargaining unit members during negotiations will be
minimized. Employees with widely different duties,
training, supervision, job locations, etc., will in
many cases have widely different collective bargaining
objectives and expectations. These different
objectives and expectations during negotiations can
result in conflicts of interest among bargaining unit
members. Such conflicts often complicate, delay and
frustrate the bargaining process.
AFSCME and City of Bangor, No. 79-A-01, slip op. at 4, 1 NPER 20-
10031 (Me.L.R.B. Oct. 17, 1979). See also Board Unit
Determination Rule 1.11(F).
In evaluating the presence or absence of community of
interest, the Board requires, at minimum, assessment of the
following eleven factors:
(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
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determining earnings; (4) similarity in employment
benefits, hours of work and other terms and conditions
of employment; (5) similarities in the qualifications,
skills and training of employees; (6) frequency of
contact or interchange among the employees (7)
geographic proximity; (8) history of collective
bargaining; (9) desires of the affected employees; (10)
extent of union organization; and (11) the public
employer's organizational structure.
Rule 1.11 (F); Council 74, AFSCME and City of Brewer, No. 79-A-01, slip op. at 3-4, 1 NPER 20-10031 (Me.L.R.B. Oct. 17, 1979);
(cited with approval in Penobscot Valley Hospital and Maine
Federation of Nurses and Health Care Professionals, AFT, AFL-CIO,
No. 85-A-01, slip op. at 4, 8 NPER ME-16011 (Me.L.R.B. Feb. 6,
1985)).
On the other hand, the Board has also stated that an
appropriate unit and not the most appropriate unit is required of
hearing examiners, see Portland Superintending School Committee
v. Portland Administrative Employees Association, No. 87-A-03,
slip op. at 6 (Me.L.R.B. May 29, 1987), and, that the "parties
[on their own initiative] are permitted to establish original
units of virtually any composition they desire, whether or not
those units would be found appropriate under the Board's
community of interest standards." Auburn School Committee v.
Auburn Education Association, No. 91-UDA-01, slip op. at 3 n.1,
14 NPER ME-22006 (Me.L.R.B. May 8, 1991). See, e.g., Woodland
Education Association/MTA/NEA and Baileyville School Committee,
Agreement on Appropriate Bargaining Unit (Me.L.R.B. filed July
19, 1984) (agreed unit including secretaries, aides, custodians,
bus drivers, food service personnel and nurse), MSAD 22 Non-
Teaching Association and MSAD 22, Agreement on Appropriate
Bargaining Unit (Me.L.R.B. filed Nov. 18, 1970) (agreed unit
including secretaries and clerks, teacher aides, lunch workers,
custodians, bus drivers and school nurse). Finally, with the
exception of certain requirements respecting supervisory and
professional employees, the members of bargaining units
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represented by the same agent may, on petition for merger by
either the employer or the agent, vote to merge their units
irrespective of considerations of community of interest. See 26
M.R.S.A. 966(4) (Supp. 1993).
Since a complete unit has not been established by agreement
of the parties, I remain obliged to determine whether the
Director and Foreman share a community of interest with employees
which the parties have stipulated, pursuant to Rule 1.11(G)(1),
to be appropriately included. Although the Board's unit
determination procedures are not adversarial, Board Rule 1.11(E)
states that "[e]ach party bears the responsibility of producing
evidence to support its contentions regarding the description of
an appropriate unit."
I accept the parties' stipulation of positions appropriately
included and their stipulation that those included positions
share a community of interest. Because the agreed unit contains
generic law enforcement, public works and clerical positions with
widely divergent job duties, work locations, qualifications,
skills and training, the burdens of proof of the contentions
respecting unit placement of the Association and Town have been
substantially lessened and enhanced, respectively. In such
situations the test respecting each contested position is whether
the disputed position shares with each unit member a community of
interest at least as strong as that shared by the two positions
in the agreed unit who share the least community of interest.
Therefore, absent considerations of conflict of interest or
statutory exclusion, it is highly unlikely, in the absence of
unusual circumstances, that a position easily considered to fall
within one of the included generic groups would not be
appropriately included. This is even more likely the case in a
heterogeneous wall-to-wall unit.
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IV. Highway Foreman
Although the evidence respecting criteria 2, 3 and 4 suggest
a community of interest with non-highway department employees, my
decision concerning Lachance's inclusion is based primarily upon
the strong community of interest he shares with the employees of
the Highway Department. I find that community of interest
criteria numbered 1, 2, 4, 5, 6, and 7, support inclusion of the
Highway Foreman in the agreed-upon unit, that the evidence
respecting criteria 8, 9, 10 and 11 is either insufficient or not
dispositive and that only criteria 3 mitigates against a
conclusion of shared interest. I conclude that the Highway
Foreman shares a distinct community of interest with his
subordinates in the Highway Department which is at least as
strong as that which they share with other employees in the
agreed unit. He therefore shares a sufficient community of
interest to be included in the agreed unit. I shall now discuss
the issues of exclusion from collective bargaining and exclusion
from the unit on the basis of supervisory conflict of interest.
A. Department Head Exclusion
The Town contends that the Highway Foreman is not a public
employee by operation of 26 M.R.S.A. 962(6)(D) (Supp. 1993),
which excludes from the coverages of the MPELRL "any person . . .
[w]ho is a department head appointed to office pursuant to
statute, ordinance or resolution for an unspecified term by the
executive head or body of the public employer." Determination of
the appropriateness of this exclusion requires inquiry "into the
nature of the job itself, as well as the appointment process."
AFSCME, Council 93 and Town of Sanford, 92-UD-03, slip op. at 29
(Me.L.R.B. Feb. 21, 1992), aff'd, No. 92-UDA-03, (Me.L.R.B. May
7, 1992). I shall first address the averred appointments to the
"offices" of both Road Commissioner and Highway Foreman.
LaChance's appointment as Road Commissioner in December of
1992 specified no term, and by operation of 30-A M.R.S.A.
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2526(7)(A)(2) (Supp. 1993), was for a specified one-year term
which expired December 17, 1993.[fn]19 There is no evidence that his
Road Commissioner appointment has been renewed. The Selectmen's
meeting minutes which the Town contends to chronicle Lachance's
appointment for an unspecified term as Highway Foreman do not
indicate that the Foreman was, in 1985, the Highway Department's
head, nor do they indicate the capacity of Ronnie Belanger, who
apparently "selected" Lachance. The minutes also do not clearly
indicate a vote by the Selectmen which would "appoint" or
"confirm" Lachance to an "office." If Belanger, in 1985, was the
Town Manager and ex officio Road Commissioner, it is entirely
possible that the Highway Department was a department headed by
the Town Manager.[fn]20 See 30-A M.R.S.A. 2636(4) and (5) (Supp.
1993). This evidence is not the sort upon which the Board
permits collective bargaining rights to be deprived. Exclusions
from the coverages of the MPELRL are strictly construed and
sparingly granted.
Even were this not the case, I would not exclude Lachance as
a Department Head because the evidence does not establish that
Lachance does more than "simply coordinate, oversee and supervise
a program." AFSCME, Council 93, supra, citing Bangor Education
Association and Bangor School Committee, No. 80-UC-02, slip op.
at 8 (Me.L.R.B. Nov. 16, 1979). The evidence fails to establish
that Lachance's primary function is to manage and direct the
____________________
19 The Town did not allege exclusion of Lachance under
26 M.R.S.A. 962(6)(B) (Supp. 1993), which is based on
appointment to a "specified" term.
20 The minutes suggest that Belanger was Road Commissioner at
the time. In light of Churchill's testimony that she was
responsible for having Lachance made titular Road Commissioner
for Fair Labor Standards Act overtime compensation purposes and
in light of the fact that almost all managerial authority still
resides in the Town Manager respecting the Highway Department, it
is reasonable to infer that the Town Manager acts as Highway
Department Head.
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affairs of a department or division. AFSCME, Council 93,
No. 92-UD-03, at 30, citing Teamsters Local Union No. 48 and Town
of Wells, No. 84-A-03, 6 NPER 20-15012 (Me.L.R.B. Apr. 11, 1984),
aff'd sub nom, Inhabitants of the Town of Wells v. Teamsters
Local Union No. 48, CV-84-235 (Me. Super. Ct., Yor. Cty., Feb.
28, 1985). LaChance spends the majority of his work day engaged
in operational highway/public works duties identical to those of
the subordinates he supervises. He makes no personnel policy
decisions on his own. The Town Manager retains final authority
in hiring decisions, job descriptions, promotions, leave
approval, disciplinary suspensions, terminations, granting of
comp time, and sick leave for periods of greater than two days.
Having concluded that the Highway Foreman is not
appropriately excluded from the coverages of the MPELRL as a
department head, I shall now determine whether he should be
excluded from the collective bargaining unit based upon the
existence of a supervisory conflict of interest.
B. Supervisory Conflict of Interest
Unlike the National Labor Relations Act which excludes
supervisors altogether from its coverage, the MPELRL does not
compel either exclusion from MPELRL coverage altogether, or
exclusion from units of subordinates. In Penobscot Valley
Hospital and Maine Federation of Nurses and Health Care
Professionals, No. 85-A-01, 8 NPER ME-16011 (Me.L.R.B. Feb. 6,
1985), the Board stated, at page 8, that:
Section 966(1) does not require the exclusion of
supervisory employees from bargaining units composed of
the employees whom they supervise but relegates the
decision of the supervisory employees' unit status to
the sound discretion of the hearing examiner. Maine
School Administrative District No. 14 and East Grand
Teachers Association, MLRB No. 83-A-09, at 12 (Aug. 24,
1983). Except in instances where the resulting one- or
two-member supervisory unit would contravene our policy
of discouraging the proliferation, through
fragmentation, of small bargaining units, we have
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approved of the creation of such separate supervisory
units. Maine School Administrative District No. 14,
supra, at 12-13; Maine School Administrative District
No. 43 and Maine School Administrative District No. 43
Teachers Association, MLRB No. 84-A-05, at 4-5 (May 30,
1984). The purpose of creating separate supervisory
employee bargaining units is to minimize potential
conflicts of interest within bargaining units, between
supervisors and their subordinate employees, as well as
to lessen conflicts of loyalty for supervisors between
duty to their employer and allegiance to fellow unit
employees.
I have considered the duties of the Highway Foreman both in light
of this statement of Board policy and in light of the following
requirement of 26 M.R.S.A. 966(1) (Supp. 1993):
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 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 establishment of performance standards for
subordinate employees and taking corrective measures to
implement those standards.
Based upon the record I conclude that the Highway Foreman's daily
work duties do not rise to the level described above as an
appropriate basis for excluding supervisors from units containing
their subordinates. See, e.g., Teamsters Local Union No. 48 and
Town of Lebanon, No. 86-UD-02 (Oct. 17, 1985), aff'd, No.
CV-85-656 (Me. Sup. Ct., Yor. Cty., Dec. 13, 1985) (Police
Administrator who lacked final authority in singular possibly
conflicting duty, that of scheduling, included in unit with
patrolmen); Teamsters Local Union No. 48 and Van Buren Light and
Power District, No. 85-UD-14 (Me.L.R.B. Jan. 25, 1985) (duties of
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Line Foreman who assigned, oversaw and reviewed 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, 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, 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 community of interest which the Highway Foreman shares
with his departmental subordinates is not outweighed by any
actual routine and significant conflict of employment interests.
Lachance possesses no real managerial authority. His supervisory
authority, on the whole, appears to be no more than that required
to assure a coordinated work effort, the classic limited
authority of a lead worker.[fn]21 Compare AFSCME Council 93 and City
of Saco, No. 93-UD-02 (Me.L.R.B. Dec. 10, 1992) (No supervisory
conflict barring inclusion where 80% of workday of Recycling
Foreman was identical in devotion to manual work and to operation
of heavy and light machinery as that of subordinates and Foreman
was not subject to exceptional qualification or special training
requirements) and Teamsters Local Union No. 48 and Town of Cape
Elizabeth, No. 86-UD-03 (Me.L.R.B. Jan. 31, 1986) (Highway
____________________
21 The record does not establish training in supervisory
duties to be a prerequisite of employment as Highway Foreman.
See Region 8 Employees Association and Region 8 Cooperative
Board, No. 88-UD-1l, slip op. at 3 (Me.L.R.B. Mar. 30, 1988);
Teamsters Local Union No. 48 and Town of Cape Elizabeth, No.
86-UD-03, slip op. at 21 (Me.L.R.B. Jan. 31, 1986); Teamsters
Local Union No. 48 and Van Buren Light and Power District, No.
85-UD-14, slip op. at 10 (Me.L.R.B. Jan. 25, 1985); Teamsters
Local Union No. 48 and Lewiston-Auburn Water Pollution Authority,
No. 79-UD-15, slip op. at 4 (Me.L.R.B. Feb. 23, 1979).
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Foreman's ministerial service as acting department head, making
of gratuitous and unsuccessful disciplinary recommendations and
lack of final authority over crew assignment, vacation and sick
leave of subordinates compelled inclusion in bargaining unit of
subordinates), with, Teamsters Local Union No. 48 and Boothbay
Harbor Water System, No. 82-UD-29 (Me.L.R.B. May 11, 1982) (Water
System Foreman excluded where supervisory duties included
scheduling, directing, evaluating and supervising employees,
establishing work priorities, maintaining records and making
hiring recommendations)
Employees possessing greater supervisory authority than
Lachance have been included in units with supervised employees.
See, Council 74, AFSCME and Rockland Wastewater Treatment
Facility, No. 82-UD-03, 4 NPER 20-12035 (Me.L.R.B. Aug. 12,
1981), (Chief Operator who supervised Senior Operator, Operators,
Lab Director and Lab Technicians, who made monthly shift
assignments, computed waste and flow rates, kept Federally-
mandated operational and effluent records, selected test sites
within the system, exercised discretion in varying treatment
plant operations, inspected equipment, and ordered chemicals
included in Public Works unit).
In light of the fact that Lachance performs duties similar
to those performed by his subordinates during a majority of his
workday, it cannot realistically be said that the principal
functions of his position are either distinct and dissimilar from
those performed by subordinates, or characterized primarily by
managerial control duties. See Southern Aroostook Teachers
Association, MTA/NEA and Southern Aroostook Community School
District, No. 86-UD-18, slip op. at 25 (Me.L.R.B. Jan. 26, 1987).
In M.S.A.D. No. 5 High School Department Coordinators and
M.S.A.D. No. 5, No. 88-UD-01 (Me.L.R.B. Oct. 16, 1987), I
commented, albeit in a school unit context, upon the evidentiary
basis to support allegations of supervisory conflict, as follows:
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Although not intended to constitute an exhaustive
listing, the following examples are illustrative of the
variety of evidence which may be probative of the issue
of the existence of supervisory conflict of interest:
evidence of the exercise of personal decisions to hire,
promote, discharge or discipline employees or instances
of the effective recommendation of such personnel
actions; evidence of the performance of significant
duties in the observation and evaluation of employees
where such observations and evaluations play a
substantial role in reappointment, non-reappointment,
grant of continuing contract status, award of merit pay
or promotion; evidence of the exercise of independent
judgment in the ranking of subordinates for the
purposes of establishing an order of lay-off or re-call
beyond merely ranking by seniority; evidence of the
performance of a role in the curriculum area(s) of
responsibility indicating the exercise of independent
judgment in the determination, modification or
attainment of curriculum objectives, and the placement
of teachers in curriculum courses; evidence of the
exercise of prevailing influence in textbook selection
or the preparation of class schedules or assignments;
evidence of the exercise of significant discretion in
the promulgation or execution of a working budgetary
document for an area of responsibility; evidence of the
non-ministerial grant or denial of the use of vacation,
sick, bereavement, educational or other leaves of
absence; and evidence of the use of settlement
authority in grievance procedures.
Based upon my findings of community of interest and lack of
supervisory conflict discussed above with regard to Lachance and
the other Highway Department employees, I conclude that he shares
a sufficient community of interest with all of the employees to
be included in the stipulated unit.
Even were my call on Lachance's inclusion a closer one,
further Board policy would compel his inclusion in the agreed
unit. There are apparently no other supervisory employees with
whom the Highway Foreman might appropriately be included for
collective bargaining purposes,[fn]22 and establishment of a single-
____________________
22 The evidence does not establish a community of interest
between Lachance and Churchill, or between Lachance and any other
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member Highway Foreman unit would offend the Board's long-
standing policy against the unnecessary proliferation of small
bargaining units.[fn]23 The Board has explained its rationale as
follows:
Small bargaining units must be bargained for and
serviced just as [must] large bargaining units. The
State is obligated to provide under 26 M.R.S.A. Section
965 the same mediation and arbitration services for
small units as are provided for large units. The
formation of small bargaining units among employees in
the same department can thus result in the employer,
the union, and the State expending an amount of time,
energy and money all out of proportion to the number of
persons served.
M.S.A.D. 43 and M.S.A.D. 43 Teachers Association, No. 84-A-05,
slip op. at 4-5, 7 NPER 20-15015 (Me.L.R.B. May 30, 1984), see,
e.g., MSAD 14 and East Grand Teachers Association, No. 83-A-09,
slip op. at 13, 6 NPER 20-14036 (Me.L.R.B. Aug. 24, 1983).
Moreover, Lachance's statutory bargaining rights would be, for
all practical purposes, negated were he to be placed in a one or
two person "collective" bargaining unit.
V. Grants Administrator
As is more fully explained below, I conclude that the Grants
Administrator is a public employee within the meaning of the
MPELRL. I also, however, conclude that the Association has
failed to establish a community of interest between Churchill and
____________________
supervisory employee.
23 See, Lubec Education Association, MTA/NEA and M.S.A.D. No.
19 Board of Directors, No. 83-UD-17 (Me.L.R.B. Apr. 13, 1983)
(Head Bus Driver/Custodian included in unit due to policy against
overfragmentation although supervisory duties included
scheduling, assigning, reviewing and overseeing work of
employees, submitting a budget for salaries and supplies,
ordering supplies up to $500, interviewing and participating in
the hiring of subordinates for vacancies, adjusting grievances,
applying established personnel policies and participating in the
formulation of job descriptions and performance criteria).
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members of the agreed upon unit.
A. Exclusion As A Fixed Term Appointee
The Town contends that Grants Administrator Nancy Churchill
is excluded from the coverages of the MPELRL because she is
"[a]ppointed to office pursuant to statute, ordinance or
resolution for a specified term of office by the executive head
or body of the public employer." See 26 M.R.S.A. 962(6)(B)
(1988). Inquiry into the applicability of this exclusionary
provision requires a determination of 1) whether the executive
head or body made the appointment 2) whether the appointment was
for a specified term, and 3) whether it was made pursuant to a
statute, ordinance or resolution.
Although the Town's Selectmen approved and signed a contract
with Churchill containing multiple one-year employment options
and a three year maximum term, the Town has presented no statute,
ordinance or resolution which establishes a Town Grants
Administrator "office", or a specified term of appointment
thereto. Moreover, the position of Town of Richmond Grants
Administrator, to the extremely limited extent which the exact
responsibilities of that position are defined or described by the
record evidence herein, does not appear to be the sort of high-
ranking or "core" municipal government official for which
political responsiveness is ordinarily or customarily assured, by
either fixed-term appointment or election. See Teamsters Union
Local 340 and City of Presque Isle, No. 92-UD-10, slip op. at 22-
25 (Me.L.R.B. Aug. 18, 1992). The record does not establish that
Churchill exercises independent policy discretion in either
procurement or execution of grants. Accordingly, the Town's
request for Section 962(6)(B) exclusion of the Grants
Administrator is hereby denied.
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B. Community of interest
The Association has failed to adduce other than merely
conclusional evidence respecting the daily duties of Churchill or
her subordinates. While it is true that the Town has agreed to
compensate Churchill for unspecified "independent contractor"
services, "consultant" services, "grant procurement" and "grant
administration" services,[fn]24 there is no further elucidation of the
nature of these duties, estimate of the proportion of Churchill's
time devoted to each, or indication whether the duties she
performs are similar to those performed by her subordinates.
Churchill is supervised directly by the Town Manager and
ultimately by the Selectmen as are Lachance and the Bookkeeper/
Deputy Treasurer/Deputy Tax Collector. Although Churchill's work
benefits include all those enjoyed by other Town employees, she
possesses much greater vacation time, an expense reimbursement
arrangement, a potential hourly pay rate more than twice that of
the Town Manager and the apparently unique option of receiving a
cash equivalent for non-salary benefits received by other Town
employees. There is insufficient evidence of the comparative
hours of work of Churchill and other Town employees.[fn]25 There is
no indication of the qualifications, skills or training required
for the position of Grants Administrator. Unlike any other unit
employee, Churchill apparently possesses the authority to hire
subordinates, with whom she works or will work in close
geographic proximity. Community of interest factors 8 through 11
are not adequately supported by record facts sufficient to
contribute to resolution of the instant unit placement issue.
____________________
24 The record does not clearly indicate the number of hours
which Churchill devotes to work for the Town per week, whether
such hours are regularly scheduled, or whether they are of an on-
call nature.
25 The evidence establishes that Churchill presently works out
of her home.
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I conclude that the Association has failed to establish that
Churchill shares a community of interest with employees in the
agreed upon unit.[fn]26 With respect to the eleven community of
interest factors only geographic proximity, contact with
supervised employees, and the fact that she and the Foreman are
supervised directly by the Town Manager, even mildly support a
finding of community. I find, therefore, that Churchill should
not at this time be included in the bargaining unit found
appropriate herein.
APPROPRIATE UNIT DETERMINATION
On the basis of the parties' stipulations, findings of fact
made by the hearing examiner, the foregoing discussion, and
pursuant to the provisions of 26 M.R.S.A. 966 (1988 and Supp.
1993), I conclude that the following unit of employees of the
Town of Richmond is appropriate for the purposes of collective
bargaining, within the meaning of 26 M.R.S.A. 966 (1988 & Supp.
1993):
INCLUDED: All regular municipal employees in the
classifications of Bookkeeper/Deputy Treasurer/
Deputy Tax Collector, Police Sergeant, Patrol
Officer, Highway Foreman, Assistant Highway
Foreman, Highway Equipment Operator, Community
Development Director, Grants Administration
Department RINOP Secretary, Administrative
Assistant/Deputy Tax Collector and Highway
Department Foreman.
EXCLUDED: Town Manager, Police Chief, Animal Control
Officer, Code Enforcement Officer, Harbor Master,
Public Plumbing Inspector, On-Call Reserve Police
Officers, Executive Director High School Student
____________________
26 My finding that Churchill shares no community of interest
is based primarily on the Association's failure of proof and does
not foreclose a future determination of community based on
sufficient evidence. There is no indication whether Churchill or
the Association, in the alternative, seek representation of
Churchill other than as a member of the sought-after unit.
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Committee, Dump Attendant, Grants Administration
Director, and all other employees of the Town of
Richmond.
Dated at Augusta, Maine this 26th day of April, 1994.
MAINE LABOR RELATIONS BOARD
/s/_______________________________
M. Wayne Jacobs
Designated Hearing Examiner
The parties are hereby advised of their right, pursuant to
26 M.R.S.A. 968(4) (Supp. 1993), to appeal this report to the
Maine Labor Relations Board. To initiate such an appeal, the
party seeking appellate review must file a notice of appeal with
the Board within fifteen (15) days of the date of issuance of
this report. See Board Rules 1.12 and 7.03.
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