Town of Topsham and Local S/89 District Lodge #4, IAMAW, No. 02-UC-01, Interim Order dated Dec. 21, 2001; Unit Clarification Report dated May 9, 2002.
Affirmed by Board, 02-UCA-01; affirmed by Superior Court AP-02-68. STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 02-UC-01 Issued: December 21, 2001 ______________________________________ ) Town of Topsham, ) ) Petitioner and Public Employer, ) ) and ) INTERIM ) UNIT CLARIFICATION Local S/89 District Lodge #4, ) REPORT International Association of ) Machinists and Aerospace Workers, ) ) Bargaining Agent. ) ______________________________________) PROCEDURAL HISTORY On September 28, 2001, Linda D. McGill, Esq., representing the Town of Topsham ("employer"), filed a Petition for Unit Clarification with the Maine Labor Relations Board ("Board"), pursuant to 26 M.R.S.A. 966(3) and Chapter 11 of the Board Rules, to determine whether the positions of Town Clerk, Tax Collector, Fire Chief and Planning Director should be excluded from the existing Town of Topsham Supervisory Bargaining Unit because the employees are not "public employees" within the meaning of 26 M.R.S.A. 962(6). The petition was found to be insufficient because it did not contain a declaration regarding the truth of the content of the petition, nor was it notarized. On October 15, 2001, the petitioner filed an Amended Petition for Unit Clarification which was deemed to be sufficient by the Board. The Amended Petition was served upon Local S/89 District Lodge #4, International Association of Machinists and Aerospace Workers ("IAMAW" or "union") on October 15, 2001. The union responded to the petition on October 29, 2001. [-1-] _______________________________________________________________________________ In its petition, the employer asserted that the duties of each of the four positions had changed over the course of prior bargaining agreements and that the IAMAW was a new bargaining agent for the unit, thus establishing "changed circumstances" as required for consideration of a Unit Clarification Petition. The employer argued in the alternative that it was not required to establish changed circumstances as persons who are not public employees could not be included in the bargaining unit under the Maine Public Employees Labor Relations Law ("MPELRL"). In order to narrow the issues presented at the hearing, the hearing examiner requested that the parties submit written argument on the following question: When an employer seeks the exclusion of employees from a bargaining unit on the basis that they are not public employees within the meaning of 26 M.R.S.A. 962(6), and the unit was established by agreement of the parties, is the employer required to show "changed circumstances" within the meaning of 26 M.R.S.A. 966(3)? Put alternatively, when the parties cannot agree on the issue, does 26 M.R.S.A. 966(1) reserve authority to the executive director to determine that employees who are not public employees should be removed from the unit, even absent changed circumstances? The union submitted its written argument on November 21, 2001. The employer submitted its written argument on December 5, 2001. JURISDICTION The jurisdiction of the hearing examiner, as designee of the executive director, to make a determination in matters relating to unit determination and unit clarification lies in 26 M.R.S.A. 966(1) and 966(2) (all subsequent statutory references are to 26 M.R.S.A.). -2- _______________________________________________________________________________ DISCUSSION The MPELRL favors the creation of bargaining units by agreement of the parties. The scope of a bargaining unit is traditionally described in the "recognition" clause of a collective bargaining agreement, which recognizes the bargaining agent as the exclusive representative of those employees in the unit. Over the course of time, and even during the term of a collective bargaining agreement, the composition of a bargaining unit can change. Unit positions may be created or deleted; the duties of positions may change. Parties are free to agree to a change in the composition of a bargaining unit at any time, including during the course of the agreement. However, when parties cannot agree to the composition of a bargaining unit, this issue is reserved to the executive director pursuant to 966(1): In the event of a dispute between the public employer and an employee or employees as to the appropriateness of a unit for purposes of collective bargaining or between the public employer and employee or employees as to whether a supervisory or other position is included in the bargaining unit, the executive director or his designee shall make the determination, except that anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit. If the parties cannot agree to the composition of an initial bargaining unit, this dispute is usually brought before the executive director by the filing of a Unit Determination ("UD") petition. A UD petition is most often used to request a determination about the scope of an initial bargaining unit. A due process hearing is then conducted, and a unit deter- mination report is issued by the executive director. If the parties cannot agree to a change in the composition of an existing bargaining unit, this dispute is usually brought before the executive director by the filing of a Unit Clarification -3- _______________________________________________________________________________ ("UC") petition. A UC petition is most often used to seek the modification of an existing bargaining unit, either by adding or deleting positions.[fn]1 In the present matter, the employer alleges that four employees in the supervisory bargaining unit are not "public employees" as defined in 962(6), and therefore not granted the right to be represented for the purposes of collective bargaining under the MPELRL. The employer and the union attempted to reach agreement on this issue during recent negotiations and, failing to reach an agreement, agreed to preserve the disputed positions in the unit " . . . pending a unit clarification of those four positions by the Maine Labor Relations Board." Article 2 of Agreement between the Town of Topsham and Local S/89 District Lodge #4, July 1, 2001 - June 30, 2004. The employer then filed the present UC petition with the Board. ___________________ 1 Would it have been appropriate for the employer to file a UD petition here rather than a UC, therefore avoiding the need to establish changed circumstances? A party filing a UD petition need not show changed circumstances to support the petition, although a valid collective bargaining agreement acts to bar such a petition. In this case, the issue was preserved in the current collective bargaining agreement, thus no contract bar would attach. A UD petition can be used to seek a modification of an existing bargaining unit, such as by severing a group or by adding a group of positions to a bargaining unit. See Chap. 11, 1(1) of the Board Rules. A UD petition can be used by a union seeking to add positions to a unit, if a sufficient showing of interest accompanies the petition. See Mountain Valley Education Ass'n and MSAD No. 43 Board of Directors, No. 94-UD-13, slip op. at 26-27 (MLRB Nov. 3, 1994). However, the rationale of Mountain Valley does not support a conclusion that an employer can use a UD petition to exclude positions entirely from an existing unit. The Board has found that a UD petition is not the correct procedure to be used by an employer attempting to exclude supervisors from an existing unit, when there is no pending demand for recognition from a potential bargaining agent; only a UC petition is available to the employer. See City of Bangor and Local 1599, IAFF, No. 80-A-03, slip op. at 3-4 (MLRB July 18, 1980). There is no pending question concerning representation in the present matter; therefore, it is very unlikely that the employer could have filed a UD petition in this case. -4- _______________________________________________________________________________ A party filing a UC petition must demonstrate that the circumstances surrounding the formation of an existing bargaining unit have changed sufficiently to warrant modification in the composition of the unit, pursuant to 966(3). Most commonly, such changes may include the creation of a new position, or a significant change in duties of a position. See MSEA and State of Maine, Department of Inland Fisheries and Wildlife, Nos. 83-UC-42 and 91-UC-11, slip op. at 8 (MLRB June 2, 1988). There is no "contract bar" to the filing of a UC petition; therefore, it is the only way to modify the composition of a unit during the term of a collective bargaining agreement, absent agreement of the parties. The executive director may deny a UC petition if the question raised could have been but was not raised prior to the conclusion of negotiations which resulted in an agreement containing a bargaining unit description, pursuant to Board Rule Chap. 11, 6(3). All of these requirements preserve the stability of the parties' bargaining relationship: parties should negotiate about the scope of the bargaining unit and only in the event of changed circumstances in the formation of a unit may the unit be changed during the term of the agreement. As noted above, a UC petition is the usual vehicle to seek this type of bargaining unit modification, if changed circum- stances are present. If an employer alleges that employees in the unit are not "public employees," and properly preserves this issue during negotiations, must that employer establish that there are changed circumstances in addition to proving that the employees are not "public employees"? In answering this question, a distinction must be made between units that are created by agreement and those that are created by a unit determination report after a due process hearing. If a union petitions the Board for a unit determination, and the employer alleges that employees in the proposed unit are not public employees, this determination will -5- _______________________________________________________________________________ be made by the executive director after a due process hearing. See 966(1); Chap. 11, 21-29 of the Board Rules.[fn]2 This determination may be appealed to the Board. Chap. 11, 30 of the Board Rules. Once such a determination is final, parties may not raise the issue again under the legal doctrine of res judicata. However, the parties may reach an agreement on which employees should be included in a bargaining unit. In that case, no due process hearing is conducted and the parties may file the agreement with the Board. Under Chap. 11, 3(1) of the Board Rules, such an agreement may not be challenged by either party for a period of one year from the date of filing. Other than this, the same type of finality that attaches to a final quasi- judicial decision does not attach to such an agreement. The Board's practice is not to inquire into the agreement of the parties. An agreement on the scope of a bargaining unit is accepted at "face value." This acknowledges the fact that parties enter into an agreement for many different reasons, often beyond the jurisdiction or concern of the Board. Further, the MPELRL clearly favors resolution of such matters by agreement of the parties. In the present matter, the parties (the employer and the predecessor bargaining agent) have twice reached an agreement about the proper scope of bargaining units in the town. These agreements have been properly filed with the Board and reflected in successor agreements. Absent changed circumstances, the scope of the bargaining unit should remain static during the course of the agreement. However, the scope of the bargaining unit is a proper (i.e., not illegal) subject of bargaining upon negotiating each successor agreement. As the hearing examiner found in Mountain Valley Education Ass'n., supra at 26: ___________________ 2 Other issues are also raised in such determinations, such as whether the employees in the proposed unit share a community of interest or whether supervisory employees may be included in the same unit as the employees who are supervised. -6- _______________________________________________________________________________ . . . [T]he parties are free to seek changes in unit composition agreed to in a contract that has expired. In fact, since unit composition is not a mandatory subject of bargaining, the Board's post-expiration status quo requirement does not even apply. Therefore, the employer could properly raise the issue during contract negotiations of whether certain employees in the unit are not public employees, even if the employer had agreed to their inclusion in the past. When the parties could not agree, the executive director is solely authorized to make the decision by 966(1). In these circumstances, 966, which governs bargaining unit determinations, must be read carefully. On the one hand, 966(3) provides that a UC petition (the only practical petition to be filed here) may be filed where the circumstances surrounding the formation of the unit are alleged to have changed sufficiently to warrant modification. On the other hand, 966(1) provides that in the event of a dispute as to whether positions are included in the unit, the executive director shall make the determination, except that anyone excepted from the definition of public employee under section 962 may not be included in a bargaining unit. Taken together, these two sub- sections suggest that when an employer alleges that employees should be excluded from the unit because they are not public employees, and preserves that issue during negotiations, the executive director should resolve the dispute even absent changed circumstances. The executive director is statutorily authorized to include only public employees in a bargaining unit that he determines. This very outcome was suggested in Town of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03 (MLRB Feb. 22, 1990). In that case, the employer sought to have employees excluded from the unit because they were not public employees. The employer -7- _______________________________________________________________________________ failed to bring up the subject of statutory exclusions until after negotiations had been completed and a tentative agreement had been reached. The hearing examiner dismissed the employer's petition, finding that the employer had not shown changed circumstances in support of its UC petition and that the petition was not timely filed (i.e., the issue was not raised and preserved during negotiations). However, the hearing examiner also found in dicta that a timely filed petition could be successful in the future, suggesting that the changed circumstance requirement of a UC petition could be met: It might be argued that section 966(1) of the MPELRL requires the executive director or designee to hear requests for unit modification based on statutory exclusions, in spite of the statutory requirement for changed circumstances . . . . [I]f an employer chooses to file a unit clarification petition to exclude employees from a unit whom it had previously agreed to include, but who in fact are not public employees, it can do so at any time; the changed circumstances surrounding formation of the unit would be simply that the employer had changed its mind. Since the original agreement to include them was strictly voluntary, this argument holds some appeal. In the very limited instance where an employer has, from the inception of the unit, voluntarily granted bargaining unit status to a non-public employee, and the bargaining agent will not agree to the employee's removal, an employer changing his mind may be a change sufficient to satisfy 966(3), if the petition is timely filed . . . . Town of Thomaston, at 13-14. The hearing examiner concluded that the only course open to the employer was to raise the issue of statutory exclusions during negotiations for a successor agreement. If the parties could not agree to the exclusions, " . . . the Town is free to return to the Board for a determination of its rights, provided it files its request in a timely manner or otherwise preserves its right -8- _______________________________________________________________________________ to do so." Town of Thomaston, at 20.[fn]3 This hearing examiner does not believe that an employer's "change of mind" is the type of changed circumstance contemplated by 966(3). However, she agrees with the conclusion of the Thomaston hearing examiner that the executive director should hear and decide the issue of statutory exclusions if the parties cannot agree and the petition is timely filed. In these unique circumstances, the employer need not establish changed circumstances because only public employees may be included in a bargaining unit that is determined by the executive director under 966(1). CONCLUSION In conclusion, under the unique circumstances of this matter--the unit was determined by agreement, the employer alleges that persons who are not public employees should be excluded from the unit, and the employer has raised and properly preserved this issue during contract negotiations--the employer need not establish changed circumstances within the meaning of 966(3). The matter shall be brought to hearing where it will ___________________ 3 The Thomaston hearing examiner found support for this conclusion in National Labor Relations Board (NLRB) precedent, which this hearing examiner also finds persuasive. Unit clarification proceedings are most commonly used by the NLRB for resolving ambiguities concerning the unit placement of individual employees who, for example, come within a newly established classification of disputed unit placement or within an existing classification which has undergone recent substantial changes in the duties of the employees in it. The NLRB will only entertain a UC petition during the term of a collective bargaining agreement under specific, limited circumstances, such as when a new position is created after the contract is signed and the unit description does not by its terms address that position. However, the NLRB will entertain a UC petition filed shortly after a contract is executed when the parties could not reach agreement on a disputed classification and the petitioner did not abandon its position in exchange for contract concessions, or the petitioner reserved "the right to go to the Board" during negotiations. See Baltimore Sun Co., 296 NLRB 1023 (1989); St. Francis Hospital, 282 NLRB 950 (1987). -9- _______________________________________________________________________________ be the employer's burden to establish that the positions it seeks to exclude from the unit are not "public employees" within the meaning of 962(6). Dated at Augusta, Maine, this 21st day of December, 2001. MAINE LABOR RELATIONS BOARD /s/____________________________ Dyan M. Dyttmer Hearing Examiner -10- _______________________________________________________________________________ STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 02-UC-01 Issued: May 9, 2002 ______________________________________ ) Town of Topsham, ) ) Petitioner and Public Employer, ) ) and ) UNIT CLARIFICATION ) REPORT Local S/89 District Lodge #4, ) International Association of ) Machinists and Aerospace Workers, ) ) Bargaining Agent. ) ______________________________________) PROCEDURAL HISTORY This unit clarification proceeding was initiated on September 28, 2001, when Linda D. McGill, Esq., attorney for the Town of Topsham ("town" or "employer"), filed a Petition for Unit Clarification with the Maine Labor Relations Board ("Board") for a determination whether the positions of town clerk, tax collector, fire chief, and planning director should be removed from the Town of Topsham Supervisory Unit pursuant to 966(3) of the Municipal Public Employees Labor Relations Law ("MPELRL"). On October 15, 2001, the Town of Topsham filed an Amended Unit Clarification Petition. This amended petition was deemed effective as made on the date that the petition was originally filed, pursuant to Chap. 11, 9(3) of the Board Rules. The Local S/89 District Lodge #4, International Association of Machinists and Aerospace Workers ("IAMAW" or "union") filed a timely response to this petition on October 29, 2001. By letter dated November 8, 2001, the hearing examiner requested that the parties submit written argument on the following issue: When an employer seeks the exclusion of employees from [-1-] _________________________________________________________________ a bargaining unit on the basis that they are not public employees within the meaning of 26 M.R.S.A. 962(6), and the unit was established by agreement of the parties, is the employer required to show "changed circumstances" within the meaning of 26 M.R.S.A. 966(3)? Put alternatively, when the parties cannot agree on the issue, does 26 M.R.S.A. 966(1) reserve authority to the executive director to determine that employees who are not public employees should be removed from the unit, even absent changed circumstances? After receiving written argument on this issue from both parties, the hearing examiner issued an Interim Unit Clarification Report on December 21, 2001, which found that in the unique circum- stances of this matter (the unit was determined by agreement, years later the employer alleges that persons who are not public employees should be excluded from the unit, and the employer has raised and properly preserved this issue during contract negotiations), the employer is not required to establish changed circumstances within the meaning of 966(3). This Interim Report is incorporated by reference into the present report. After due notice, an evidentiary hearing on the petition was held by the undersigned hearing examiner on February 28, 2002, at the Board conference room in Augusta, Maine. Linda D. McGill, Esq., appeared on behalf of the Town of Topsham. David Porter appeared on behalf of the IAMAW. Also present at the hearing were Matthew Tarasevich, Esq., with Ms. McGill and Brian Bryant with Mr. Porter. Prior to the commencement of the formal hearing, the parties met with the hearing examiner to offer exhibits into evidence and to formulate stipulations of fact. The Town presented as its witnesses Cathy Ruth, town manager, and Roger Caouette, Town of Topsham selectman. The IAMAW presented no witnesses. The parties were given the opportunity to examine and cross-examine witnesses, offer evidence and present argument. Written briefing by the parties was completed on April 3, 2002. -2- _________________________________________________________________ JURISDICTION The jurisdiction of the executive director or his designated hearing examiner to hear this matter and make a determination lies in 26 M.R.S.A. 966(1) and (3). STIPULATIONS The parties stipulated to the following facts: 1. The Local S/89 District Lodge #4, International Association of Machinists and Aerospace Workers (IAMAW) is a public employee organization that is the recognized bargaining agent for the Topsham Supervisory Unit, within the meaning of 26 M.R.S.A. 962(2). 2. The Town of Topsham is a public employer within the meaning of 26 M.R.S.A. 962(7). 3. The Topsham Supervisory Unit was created by the filing of an Agreement on Appropriate Bargaining Unit with the Board on April 26, 1995. At that time, the unit consisted of the following positions: code enforcement officer, recreation director, town clerk, tax collector, fire chief, assessor, economic development director, and rescue chief. 4. By Agreement on Appropriate Bargaining Unit filed with the Board on November 3, 1999, the parties agreed to the following changes in the Topsham Supervisory Unit: add the planning director to the unit, remove the economic development director from the unit, allow the fire chief to remain in the unit until a fire fighter unit is established, a bargaining agent is recognized or certified for the fire fighter unit, and the fire chief is assigned to the management team for purposes of bargaining. 5. Pending the outcome of the present petition, the Topsham Supervisory Unit presently consists of the following positions: code enforcement officer, planning director, recreation director, -3- _________________________________________________________________ town clerk, tax collector, fire chief, assessor, and rescue chief. EXHIBITS The following exhibits were offered into evidence without objection: Employer-1 Code of the Town of Topsham (portions) Employer-2 Code of the Town of Topsham (portions) Employer-3 30-A M.R.S.A. 3153 Union-1 Job Posting, Town of Topsham Fire Chief and job description Union-2 Personnel Rules and Regulations for the Town of Topsham Union-3 Merriam-Websters Collegiate Dictionary - definition of "hire" and "appoint" FINDINGS OF FACT General 1. The Town of Topsham employs approximately 239 employees, including on-call and temporary employees. The executive head of the town is the five-person board of selectmen. Since 1991, the town has operated under a town manager plan. The current town manager has held her position for about five years. The town also employs an assistant town manager. 2. The town is organized into various departments. As relevant to this petition, the departments include the fire department, town clerk's office, tax collector's office and planning office. 3. The town manager supervises all department heads. 4. The collective bargaining team for the employer has consisted of two members of the board of selectmen and the town -4- _________________________________________________________________ manager. Fire Chief 5. The fire chief is appointed for an indefinite period by the selectmen pursuant to Sec. 6-25 of the Code of the Town of Topsham ("Town Code"). 6. In the organization of the town, the fire chief reports to the town manager. If a fire fighter has a concern or grievance that cannot be resolved by the fire chief, such matter should be referred to the town manager. 7. Pursuant to Sec. 6-25 of the Town Code, the fire chief is vested with the supervision and control of the fire department, he must see that the engine house, engines and apparatus and the property of the fire department are kept in good order, he must take command of the department and see that all officers do their duty, he must carry out and enforce the personnel rules and regulations established by the selectmen, and he must approve all bills for the department before presentation to the selectmen for payment. 8. The most recent permanent fire chief was appointed by the selectmen in 1986 and served until 2000, although he was at times on leave due to illness. Currently, an acting fire chief is serving the town. 9. The town is soliciting employment applications for a new, permanent fire chief. The applicants will be screened and interviewed by an interviewing panel which is made up of two selectmen, two members of the personnel board, the town manager and the assistant town manager. The interviewing panel will select the top three candidates. The fire chief will be selected and appointed by the full board of selectmen from these top three candidates. 10. The fire chief works 40 hours per week. He maintains an office in the town's fire house. -5- _________________________________________________________________ 11. The fire department is manned by approximately 40 on- call fire fighters. Of these 40 on-call fire fighters, some are scheduled to work per diem shifts to cover the fire house during regular business hours. Two fire fighters work at the fire house each day 8:00 a.m. to 5:00 p.m., Monday to Friday. This is the only routine coverage at the fire house. Fire fighters assigned to work any of these regular shifts are paid for hours worked. Other fire fighters are called as needed to fight fires and paid for the time that they work. 12. The fire chief or an officer schedules the fire fighters who work the per diem shifts at the fire house. 13. The town maintains a standing personnel board made up of seven members appointed by the selectmen. The personnel board selects top candidates to serve as on-call fire fighters. The personnel board refers the top three candidates to the fire chief, who makes the ultimate decision to hire on-call fire fighters. The fire chief is empowered to discharge fire fighters (although this has not occurred). The fire chief is also empowered to select certain fire fighters as deputies and other officers. The fire chief does not perform routine job evaluations for fire fighters. 14. The fire chief creates and implements all standard operating procedures for the fire department, and does this with considerable independence. 15. The fire chief attends training programs and recommends the training needed for the on-call fire fighters. 16. The fire chief represents the town before the Legislature in dealings with the Brunswick Naval Air Station, and at associations and regional groups relating to his position. He frequently makes public appearances, such as for school programs. 17. The fire chief goes to some, but not all, fire scenes. Either the fire chief or an officer will appoint a fire fighter to be in charge of each fire scene. -6- _________________________________________________________________ 18. The fire chief oversees but does not participate in the maintenance of fire equipment. 19. The fire chief formulates the budget for the fire department, including administrative services and any needed capital expenditures. The budget is reviewed by the finance committee and by the selectmen, and then placed on the warrant for the town meeting, where it is ultimately voted upon by the citizens of the town. The fire chief is expected to be available to answer any question about the fire department budget at the town meeting. 20. The town is in the process of designing and building a new public safety building, for fire and emergency services. The fire chief will be one of the key individuals responsible for the development of this building. Town Clerk 21. The business of the town clerk's office is to provide various services to citizens (issuing licenses and other permits, registering vehicles, etc.), to conduct elections which occur usually two times per year, and to oversee record keeping and archives for the town (for instance, birth and death certificates). 22. The present town clerk has served in her position since the early 1990's. Sec. 6-47 of the Town Code provides that effective at the annual town meeting in 1991, the town clerk shall be appointed for an indefinite term by the selectmen and, if the town adopts a town manager plan, by the town manager. Before 1991, the town clerk was an elected position. It is unclear whether the present town clerk was appointed by the selectmen or by the town manager. 23. The town clerk works on a full-time basis. The town clerk's office also employs a full-time deputy clerk and an assistant clerk who works about one day per week. In addition, -7- _________________________________________________________________ 30 to 50 persons per year serve as election workers for about two days in the year. 24. Under state law, the town clerk appoints the deputy clerk who serves at the will of the town clerk. 25. Some of the functions of the town clerk's office (such as vehicle registration) must be carried out in accordance with state law, regulation and procedure. The town clerk creates and implements some policies regarding the operation of the office. 26. The town clerk performs periodic evaluation of the employees under her and she makes recommendations regarding merit pay for these employees. 27. The town clerk spends the majority of her time performing the day-to-day functions of the office, such as vehicle registration, record maintenance and other service to the public. The office is a very busy one with a small staff which makes this a necessity. 28. The town clerk has not, in the past, participated as a member of the town's collective bargaining team. 29. The town clerk performs many functions as outlined by state law. By law, she must perform some of these functions herself and may not delegate these functions (such as those related to elections). The town clerk is also involved in certain functions unique to the town, such as archival and map projects. 30. The town clerk creates a budget for the town clerk's office in a similar manner as the fire chief creates a budget for the fire department. The town clerk also keeps the selectmen advised about new rules regarding registrations and elections. Tax Collector 31. The business of the tax collector's office is the collection and disbursement of taxes and revenues for the town. 32. The current tax collector was appointed to office for an -8- _________________________________________________________________ indefinite term by the town manager pursuant to Sec. 6-47 of the Town Code. The current tax collector was appointed in April, 2001. 33. The tax collector is employed on a full-time basis. Also employed in the tax collector's office is a full-time deputy collector and an assistant tax collector who is employed 27.5 hours per week. 34. Under state law, the tax collector appoints the deputy collector and the assistant tax collector who serve at the will of the tax collector. 35. The tax collector creates and implements some policies for the operations of the tax collector's office. 36. The tax collector performs periodic evaluations of the employees under him and he makes recommendations regarding merit pay for these employees. 37. The tax collector spends the majority of his time performing the day-to-day functions of the office. The office is a very busy one with a small staff which makes this a necessity. 38. The tax collector has not, in the past, participated in collective bargaining on behalf of the town. 39. The tax collector performs many functions as outlined by state law. By law, he must perform some of these functions himself and may not delegate these functions (such as deciding when property tax liens should be imposed or relieved). 40. The tax collector creates a budget for the tax collector's office in a similar manner as the fire chief creates a budget for the fire department. 41. The tax collector makes recommendations about investments to the town manager and the selectmen. The selectmen make the final decisions regarding investments for the town. Planning director 42. The business of the planning office is to oversee the -9- _________________________________________________________________ controlled growth of the community, including short- and long- term planning for the town, and to make recommendations regarding capital improvements. The planning office also reviews applications for completeness (such as for the development of subdivisions) that are decided upon by the seven-member citizen Planning Board. 43. In 1992, a comprehensive plan for growth was passed at the town meeting. All decisions regarding the town's growth must be in keeping with this plan. 44. The finance committee has completed a draft capital improvement plan for the town. 45. The position of planning director has been vacant since December, 2000. The individual who served in the position prior to that date was employed for about two years and worked on a full-time basis. Currently, an interim planning director serves the town as a consultant, working about one day per week. The town has had difficulty finding qualified individuals to fill the position on a permanent, full-time basis. 46. The Town Code does not provide for the appointment of the planning director by either the town manager or the selectmen. The individual who last served as the full-time planning director was hired by the town manager after being recommended by an interview panel consisting of members of the Planning Board and the town manager. The letter advising the individual of the offered employment was called an "appointment letter." 47. Besides the planning director, the planning office employs a full-time assistant planner and a clerical employee who works about 17.5 hours per week for the planning office and for the code enforcement officer, and the remainder of her hours for the public works department. 48. The code enforcement officer handles applications for building permits and the like. He is not considered to be part -10- __________________________________________________________ of the planning department. 49. The planning director who worked on a permanent full- time basis performed periodic evaluations of the employees under her and she made recommendations regarding merit pay for these employees. The present planning director who works as a consultant does not. 50. The planning director who worked on a permanent full- time basis had considerable contact with the Planning Board. She made recommendations to the Planning Board about whether to approve or deny applications (such as for subdivisions). The Planning Board has the ultimate authority to approve or deny such applications. 51. The planning director creates a budget for the planning office in a similar manner as the fire chief creates a budget for the fire department. It is unclear who has prepared the department budget since the permanent full-time director separated from her position. The planning director does not have a significant amount of contact with the selectmen. 52. The planning director who worked on a permanent full- time basis formulated policies for the growth of the town with a considerable amount of independence. She made presentations to the public about the town's growth. DISCUSSION The sole issue presented in this matter is whether the positions of fire chief, town clerk, tax collector, and planning director are "department heads" within the meaning of 26 M.R.S.A. 962(6)(D) and therefore not public employees who may be included in the presently-configured Topsham Supervisory Unit. Section 962(6)(D) provides that a "public employee" means any employee of a public employer, except any person who is a "department head or division head appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the -11- _________________________________________________________________ executive head or body of the public employer." The exception, by its own terms, requires that the employee must be appointed by the executive head or body of the employer, that the appointment must be made pursuant to statute, ordinance or resolution, and that the appointment must be for an unspecified term. In addition, the employees' duties must demonstrate that they serve as the functional head of a department or division within the employer's workplace. The hearing examiner will first discuss whether any of the four positions at issue were appointed as required by the exception. Second, the hearing examiner will discuss whether any of the positions that were appointed as required by the exception can be considered "department heads." Appointed to office pursuant to statute, ordinance or resolution for an unspecified term by the executive head or body of the public employer Often, the appointment part of the exception is easily resolved. In the present matter, however, the process for appointing each of the four positions at issue was different and the individual or body making the appointment was also different: Fire chief - The fire chief was appointed for an indefinite term by the board of selectmen. Sections 6-25(A) and (B) of the Town Code provide that the board of selectmen appoints the fire chief. In addition, 30-A M.R.S.A. 3153 provides that a fire chief must be appointed by a municipality, unless that position is elected. Town clerk - It was unclear what person or body appointed the present town clerk. In 1991, the town adopted the town manager plan. Section 6-47 of the Town Code provides that if the town adopted a town manager plan, the town manager was empowered to appoint for indefinite terms the position of road commissioner, treasurer, tax collector and town clerk. The town clerk was appointed in the "early 1990's" and the town manager -12- _________________________________________________________________ (who has been employed for five years) testified that she did not know whether the town clerk was appointed by the town manager or the board of selectmen (Tr. 72). Tax collector - The town manager appointed the present tax collector for an indefinite term in 2001 pursuant to 6-47 of the Town Code. Planning director - The town manager hired the planning director when that position was filled by a permanent full-time employee. The offer of employment (although not submitted into evidence) was apparently called an "appointment letter." The manner in which these four positions were appointed or hired begs an obvious question: Is the board of selectmen or the town manager the "executive head or body" of the town of Topsham? This is not a mere technicality. The department head exception requires that only persons who were appointed by the executive head or body of the public employer may be excepted from the definition of public employee. The hearing examiner is bound to give meaning to this, as well as every, part of the exception. Further, because this is an exception, the language of the exception must be carefully and narrowly construed to avoid undermining the purpose of the MPELRL of providing public employees the right to join unions and bargain collectively. State of Maine and Maine State Employees Association, No. 82-A-02, slip op. at 6 (MLRB June 2, 1983). The employer here argues that the phrase "executive head or body" must be read disjunctively to indicate alternatives - i.e., either the executive head or the executive body may appoint a department head. This is obviously a grammatically correct reading of the phrase. However, the hearing examiner believes that the Legislature most likely used this language because the executive authority of some public employers lies in a single individual (a mayor, a manager, etc.) and in other public employers lies in a group or body (a city council, a board of -13- _________________________________________________________________ directors, etc.). The disjunctive is used to encompass both possibilities. If it were established that the executive authority of a public employer rested in both an executive head and an executive body, then either the head or body could appoint a department head. The hearing examiner, however, does not believe that the employer has established that the Town of Topsham has both an executive head and an executive body. When asked by the hearing officer who was the "head of the Town of Topsham," the town manager opined that the board of selectmen was "in charge of town government overall" and that the town manager was the "chief administrative employee of the town" (Tr. 73). This is a logical conclusion. A common meaning of the word "executive" is to be the chief or the head of an organization. The board of selectmen is "above" the town manager in the municipal hierarchy of the Town of Topsham. The selectmen appoint the town manager and may remove the town manager for cause. The selectmen are elected, not appointed, and therefore hold politically responsive positions. It is in keeping with fundamental principles of democracy that the "executive head or body" of a town be elected, not appointed. The town manager, on the other hand, is a paid employee who oversees or administers the day-to-day operations of the town and supervises employees. State municipal law gives some guidance on this question. A review of 30-A M.R.S.A. 2636 shows the wide range of powers and duties that a town manager can have. 30-A M.R.S.A. 2636(1) describes the town manager, in part, as the "chief executive and administrative official of the town." At the same time, 30 M.R.S.A. 2635 provides that the board of selectmen shall " . . . exercise all administrative and executive powers of the town except as provided in this subchapter." The town manager is responsible to the selectmen for the administration of all departments and offices of the town, under 30-A M.R.S.A. 2636(2). These provisions suggest that the selectmen retain -14- _________________________________________________________________ the executive powers of the town, except for those powers specifically given to the town manager. A town ordinance or code can also shed light on whether the selectmen or some other body or individual holds the "executive" authority of the town. For instance, this hearing examiner reviewed the Charter of the City of Hallowell and the powers and authority granted to the mayor, city council, and city manager in that Charter in determining that the mayor and the city council, not the city manager, constituted the "executive head or body" of that city. Granite City Employees Association and City of Hallowell, No. 01-UD-04, slip op. at 15 (MLRB May 23, 2001). Another hearing examiner in Teamsters Local No. 48 and City of Portland, No. 78-UD-39, slip op. at 3 (MLRB Sept. 13, 1978) determined that the city manager was the executive head of that city by examining the City Charter of Portland. See also David Page v. Ronald Stewart, No. CV-86-663, York Sup. Ct. (Apr. 22, 1988) (court examined the Saco City Charter in determining that the mayor was the executive head of the City, the city council was the executive body, and the city administrator was the chief administrative officer). In the present matter, only a small portion of the Code of the Town of Topsham was offered into evidence by the employer, and the portion offered does not discuss the executive powers and duties of the board of selectmen or the town manager per se. However, even the portion offered describes the wide duties and authority of the selectmen. The selectmen appoint the tax assessor, the members of the finance committee (in an alternating arrangement with the moderator of the town meeting), the members of the recreation advisory committee, and the fire chief. The selectmen serve as Overseers of the Poor. No money may be paid from the town treasury except over the signature of the majority of the selectmen. The selectmen have care, custody and management of all property of the town, except as otherwise provided in the Code. The -15- _________________________________________________________________ treasurer may convey deeds acquired by the town with the consent of the selectmen. On the other hand, the town manager appoints the road commissioner, treasurer, tax collector and town clerk since the adoption of the town manager plan in 1991. While keeping in mind that only a portion of the Town Code has been offered into evidence, the Code supports the conclusion that the primary executive authority of the town rests with the selectmen. Past hearing examiners have found the "executive head or body" of most municipalities to be the board of selectmen or the city council, with little further discussion. This may be because the executive authority of a municipality so obviously lies with the selectmen or city council. This may also be because the act of "appointing" implies some sort of formal process, in keeping with selection by an elected board, that distinguishes it from mere "hiring," that is often performed by the town manager as the chief administrator of the town. There must be some greater significance or formality to appointments than is the case with the general hiring process. See Teamsters Local 340 and Presque Isle, No. 92-UD-10 (MLRB Aug. 18, 1992) (when city charter gives the city council discretion to make one- year appointments to all employment positions in city, this is at odds with the intent of the MPELRL); Bangor Education Association and Bangor School Committee, No. 80-UC-02 (MLRB Nov. 16, 1979) ("election" of Director of Title I by School Committee insufficient as appointment under 962(6)(B) where no statute, ordinance or resolution was in evidence and all teachers were "elected" in same manner). In the vast majority of board cases on this issue, the department head was appointed or at least confirmed by the selectmen or city council. See, e.g., AFSCME Council 93 and Town of Sanford, No. 92-UD-03 (MLRB Feb. 21, 1992), aff'd, 92-UDA-03 (MLRB May 7, 1992) (appointed by selectmen); Teamsters Local Union No. 48 and Town of Wells, No. 84-A-03, slip op. at 6-7 (MLRB Apr. 11, 1984), aff'd sub nom. -16- _________________________________________________________________ Inhabitants of the Town of Wells v. Teamsters Local Union No. 48, CV-84-235, York Sup. Ct. (Feb. 28, 1985) (appointed by selectmen). Confirmation by the selectmen or city council, at least, is required to meet the "degree of importance and formality needed to satisfy the Act's appointment requirement." AFSCME Council 93 and Town of Paris, No. 97-UD-14, slip op. at 11 (MLRB Oct. 1, 1997) (involvement of two selectmen in the interview and appointment process and confirmation by the board of selectmen satisfies requirement that appointment be by executive head or body); see also Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34, slip op. at 5 (MLRB June 20, 1980) (confirmation by city council satisfies requirement). The case cited by the employer, Sewall v. Portland Water District, No. 86-17 (MLRB Aug. 19, 1986), is merely another example where the Board has found that appointment followed by confirmation (in that case, appointment by the general manager of the water district and confirmation by the board of trustees) satisfies the appointment requirement of the law. Finally, a review of cases interpreting identical language in another exception to the definition of "public employee" yields the same conclusion. 26 M.R.S.A. 962(6)(B) excepts from the definition of public employee any person "appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer." The requirement that the person be appointed by the executive head or body of the public employer is identical to the department head exception of 962(6)(D). A review of these cases also shows that appointment by the selectmen or city council, or at least confirmation by these bodies, is usually required.[fn]1 ____________________ 1 See, e.g., Teamsters Local 340 and Boothbay Harbor, Nos. 99-UD-03 and 99-UD-05, slip op. at 21 (MLRB Jan. 20, 1999) (confirmation of deputy tax collector by selectmen sufficient); Thomaston and Teamsters -17- _________________________________________________________________ For all of these reasons, the hearing examiner finds that the board of selectmen is the "executive head or body" of the Town of Topsham, and the town manager is not. Based on this conclusion, the hearing examiner finds the following about the four positions at issue: The fire chief was appointed by the selectmen for an unspecified term and this appointment was pursuant to statute, ordinance or resolution ( 6-25 of the Town Code). Therefore, the hearing examiner will go on to examine in the second part of this report whether the fire chief functions as a "department head." The town clerk was either appointed by the selectmen or the town manager - the town manager did not know (Tr. 72). Based on the evidence presented, it is possible that the town clerk went from being an elected position to being a position appointed by the town manager after adoption of the town manager plan in 1991. It must be assumed that the town had ready access to records (and to the town clerk herself) to be able to offer definitive evidence on this question. On this basis, the hearing officer would be justified in finding that the town has not met its " . . . responsibility of producing evidence to support its contentions" that the town clerk was appointed by the "executive head or body" of the town. Chap. 11, 23 of the Board Rules. Rather than rely on this paucity of evidence, however, the hearing examiner will go on to examine whether the town clerk ____________________ Local 340, No. 90-UC-03, slip op. at 15-16 (MLRB Feb. 22, 1990) (appointment of town clerk by selectmen sufficient); Teamsters Local 340 and Presque Isle, No. 92-UD-10, slip op. at 17-18 (MLRB Aug. 18, 1992) (city council is executive head or body of city; positions in question either appointed or confirmed by council); Teamsters Local 48 and Town of Rangeley, No. 79-UD-12, slip op. at 2-3 (MLRB Jan. 27, 1979) (appointment of positions by selectmen sufficient in town with town manager plan). See also David Page v. Ronald Stewart, supra, where the court found that a tax assessor who was appointed by the city administrator and confirmed by the city council was not a public employee within the meaning of 962(6)(B). -18- _________________________________________________________________ functions as a "department head," since the town clerk may have been appointed by selectmen, and her appointment was for an unspecified term pursuant to statute, ordinance or resolution ( 6-47 of the Town Code). The tax collector was appointed by the town manager pursuant to 6-47 of the Town Code. The town manager is not the "executive head or body" of the town of Topsham. The tax collector's appointment was not confirmed by the board of selectmen. Therefore, the position of tax collector cannot be excluded as a "department head" within the meaning of 26 M.R.S.A. 962(6)(D).[fn]2 The tax collector is a public employee and may remain in the Topsham Supervisory Unit. The planning director was hired by the town manager. The town manager testified that the letter offering the position to the planning director was described as an "appointment letter." This document was not offered into evidence; therefore, the hearing examiner had no ability to discern whether this could satisfy the "degree of importance and formality" needed to qualify as an appointment. AFSCME Council 93 and Town of Paris, supra, slip op. at 11. In any event, the "appointment letter" was sent by the town manager, not the selectmen. There was nothing about the employment of the planning director that distinguished her situation from any other employee hired by the town manager. In addition, the Town Code does not provide for the appointment of this position. Therefore, the planning director was not appointed; she was not appointed by the executive head or body of the town; and she was not appointed pursuant to statute, ordinance or resolution. The position of tax collector cannot be excluded as a "department head" within ____________________ 2 In addition, the tax collector does not function as a true department head. This conclusion is more fully described at footnote 3 of this report. Therefore, even if the tax collector was appointed by the executive head or body of the town, the tax collector would not be excluded under the department head exclusion. -19- _________________________________________________________________ the meaning of 26 M.R.S.A. 962(6)(D). The planning director is a public employee and may remain in the Topsham Supervisory Unit. Department head functions The inquiry of whether a position is a "department head" must focus on the actual job duties or functions of the position, not the job title alone or its placement on the employer's organizational chart. In interpreting the (6)(D) exclusion, the Board has looked at the three types of job duties normally inherent in a department or division: day-to-day, rank-and-file work; supervision of other employees; and formulating and administering department policies and practices - management of the department. The Board has found that the "primary function" of the position must be in managing and directing the affairs of the department, in an analysis worth quoting at length: Our cases establish that for an employee to be a "department head" within the meaning of Section 962(6)(D), the employee's primary responsibility must be that of managing or directing the affairs of the department, as opposed either to acting as a supervisor or to performing the day-to-day work of the department. For example, in Teamsters Local 48 and City of Portland, No. 78-UD-39, slip op. at 2 (MLRB Sept. 13, 1978), the hearing examiner declared 12 employees to be Section 962(6)(D) division heads because they were 'responsible for the day-to-day administration' of their divisions, and because their principal duties were those of 'formulating and administering division policies and practices.' On the other hand, in Teamsters Local 48 and Town of Bar Harbor, No. 80-UD-09, slip op. 3 (MLRB Nov. 15, 1979), a Treatment Plant Operator who was responsible for the day-to-day operation of the treatment plant and who performed such administrative duties as setting the work schedules of other employees, arranging for the purchase of equipment and supplies, and submitting a budget to the town manager, was found not to be a department head because, among other things, the employee 'spent the major portion of his time performing the same work as other operating employees.' See also Teamsters Local 48 and Boothbay Harbor Water System, No. 82-UD-29, slip op. at 6-8 (MLRB May 11, 1982) (Foreman who performed -20- _________________________________________________________________ various administrative duties was not an administrator because 'on balance the primary function of the foreman's position is to act as a supervisor'). Our cases thus require hearing examiners, when presented with evidence showing that an employee performs both administrative duties and supervisory or rank-and-file duties, to decide whether the primary duties of the position are those of an administrator or those of a supervisor or a rank-and-file employee. Teamsters Local Union No. 48 and Town of Wells, supra, slip op. at 6-7. By "primary function" the Board has made clear that it means how much time the position spends performing administrative duties, as opposed to supervising or performing day-to-day duties. In Town of Wells, for instance, the Board found that a code enforcement officer's enforcement and licensing duties were far more significant in terms of the employee's "time and effort" than were his administrative duties. The Board found that the budget submitted by the code enforcement officer, while such activity was considered an administrative function, did not result in a "major expenditure of effort by the employee." Town of Wells, supra, slip op. at 7-8. It is particularly important to distinguish duties of an administrator or a department head from duties as a supervisor. Under the MPELRL, department and division heads are excluded from collective bargaining but supervisors are not. The distinction is not always an easy one to make, but it is critical. 26 M.R.S.A. 966(1) sets out some of the criteria that are to be considered when making a determination as to whether an employee is a supervisor and therefore should not normally be placed in the same unit as the employees he/she supervises: 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 -21- _________________________________________________________________ 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. Since supervisors have collective bargaining rights, these criteria cannot be determinative of whether an employee is a department head and therefore excluded from collective bargaining. Teamsters Local No. 48 and Boothbay Harbor Water System, No. 82-UD-29, slip op. at 7 (MLRB May 11, 1982). Stated another way, a true department or division head does not simply coordinate, oversee and supervise a program. Bangor Education Association and Bangor School Committee, supra, slip op. at 8. The rationale for excluding department heads from those public employees having collective bargaining rights is not specifically addressed in the statute. It is clear, however, that to give a department head collective bargaining rights would be tantamount to requiring the employer to bargain with itself. As the hearing examiner in another unit determination case noted, presumably the reason department heads are excluded from coverage under the MPELRL is: . . . because in municipalities large enough to have one or more true departments and even divisions within departments, the chief administrator of the municipality cannot possibly personally perform the employee-related management functions that normally fall to that position (and are not listed as simply supervisory duties in 26 M.R.S.A. 966(1)) -- negotiation of collective bargaining contracts, hiring and firing of staff, development and administration of management policies and practices, etc. AFSCME Council 93 and Town of Sanford, supra, slip op. at 31, fn. 6. The more time an employee spends in true administrative and management tasks (as opposed to supervisory or day-to-day tasks), the closer the identity of that person is to the -22- _________________________________________________________________ employer. The more time an individual spends in supervisory and day-to-day tasks, the closer the identity of that employee is to the rank-and-file and supervisory employees who are granted collective bargaining rights under the MPELRL. It is likely for this reason that true "department heads" have been found employed by larger municipalities and public employers, as it is within these larger entities that management function of a department is genuinely given over to department heads, and department heads actually spends the majority of their day as an administrator or manager. See, e.g., Maine State Employees Association and State of Maine Judicial Department, No. 98-UC-01 (Jan. 21, 1998); Teamsters Local 48 and City of Portland, supra, slip op. at 2. The fire chief of the Town of Topsham holds a unique position in the town, at least as compared to the other department heads discussed in this matter. The fire chief oversees a rather sizeable number of fire fighters, some of whom man the fire station on a regular basis during business hours and some of whom are called strictly to fight particular fires. While the fire chief certainly performs some of the hands-on work of the department (he may attend fire scenes, he may decide who is in charge of a scene), most of the actual fire fighting is performed by those below him in the command. The fire chief does not personally take part in maintaining the department's equipment, another day-to-day function. The fire chief also performs some supervisory functions, such as scheduling. However, the fire chief spends the majority of his time being the administrator of his department. These administrative functions include setting and enforcing standard operating policies for the department, creating and administering the budget, hiring employees, and appointing deputies and officers. The fire chief has been and will continue to be one of the primary individuals responsible for the new public safety building being developed, another administrative function. The fire chief represents the -23- _________________________________________________________________ town at the Legislature and various regional organizations, as this relates to his position. The Town Code makes very clear that the administrative control of the fire department rests with the fire chief. Section 6-25(A) of the Town Code provides that the "supervision and control of the fire department shall be vested in the fire chief." Section 6-25(B) of the Town Code provides that "immediate direction of the fire department shall be in the hands of the fire chief." The Town Code further provides that the fire chief must carry out and enforce the personnel rules and regulations for the department and that he must approve all bills of the department before presentation to the selectmen. Like the other positions at issue, the town manager is "over" the fire chief in the town hierarchy. For instance, contract grievances would be presented first to the fire chief (as a department head), then to the town manager and then to the selectmen. However, the hearing examiner was persuaded by the testimony of the town manager that "real" management authority of the fire department rests with the fire chief. This is logical considering the unique public safety aspects of administering a fire department, which are very unlike the more clerical functions performed by other departments discussed at the hearing, all under the direction of the town manager. Cf. Teamsters Local No. 48 and Boothbay Harbor Water System, supra (town manager and not the water system foreman was the true administrator of the water system); AFSCME Council 93 and Town of Paris, supra (town manager and not the road foreman was the true administrator of the road department). It is also noteworthy that the employees of the fire department are now a recognized bargaining unit, the Fire Fighter Unit, by agreement signed November 2, 1999. No bargaining agent has ever been certified or recognized for this unit. However, part of the 1997 agreement provided that the fire chief would be -24- _________________________________________________________________ removed from all bargaining units if a bargaining agent were recognized or certified for the Fire Fighter Unit and the fire chief were assigned to the management team for purposes of bargaining. Presumably, this contingent exclusion would be due to the fire chief's status as a confidential employee, under 26 M.R.S.A. 962(6)(C). This agreement strongly suggests that the fire chief exerts sufficient management control of the department to be placed on a bargaining team. None of the other positions at issue here (town clerk, tax collector, or planning director) have ever served on the employer's bargaining team, even though their subordinates are members of the Operations Bargaining Unit. The position of the fire chief here is similar to the positions of the Court Appointed Special Advocate Program (CASA) Director and the Court Alternative Dispute Resolution Service (CADRES) Director considered in Maine State Employees Association and State of Maine Judicial Department, No. 98-UC-01 (Jan. 21, 1998). These directors were both the chief administrators of programs, the day-to-day work of which was performed by a large number of volunteer advocates or mediators. The actual employed staff of the programs consisted of the director and a shared clerical employee. Both the CASA and the CADRES directors received advice from advisory panels, but otherwise acted with considerable autonomy in the administration of their respective programs. Both were found to be department heads within the meaning of 26 M.R.S.A. 962(6)(D). The hearing examiner noted that the CASA and the CADRES directors were not comparable to department heads of small (one- or two-person departments) considered by the Board in previous cases, such as AFSCME Council 93 and Town of Sanford, supra, and Teamsters Local Union No. 48 and Town of Wells, supra. Maine State Employees Association and State of Maine Judicial Department, slip op. at 33-34. In Sanford and Wells, for instance, the limited size of the -25- _________________________________________________________________ "department" leant considerable weight to the conclusion that the primary function of the head of the department was to perform the day-to-day functions of the department and to supervise the employees, not to administer and manage the department. The CASA and the CADRES directors did not spend a significant amount of time performing the actual work of their programs (this was performed by the volunteer advocates and mediators); they were thus free to function as true administrators of their programs. Similarly here, the fire chief is free to be the administrator of the fire department because most of the day-to-day functions of the department are performed by the officers and a large number of on-call fire fighters. As will be discussed more fully below, this is in contrast to the town clerk, who must spend most of her time supervising employees and performing day-to-day functions of the department due to the small number of employees of her department. For all of these reasons, the hearing examiner finds that the fire chief is a department head within the meaning of 26 M.R.S.A. 962(6)(D). The town manager testified that the majority of the town clerk's time is spent in the day-to-day functions of the office, such as issuing licenses and maintaining town records (Tr. 75). Whether this is a "public relations effort" as suggested by the town manager, or simply out of necessity due to the small size of the department, is really irrelevant to this discussion. In addition to these day-to-day functions, the town clerk acts as the supervisor of the full-time deputy clerk and the assistant clerk who works only one day per week. She assigns work, evaluates work and administers discipline up to a certain level under the collective bargaining agreement. As noted earlier, these supervisory functions do not deprive the position of collective bargaining rights under the MPELRL. The town clerk is in a bargaining unit of supervisors, after all. -26- _________________________________________________________________ The town clerk also performs some unique functions in the town, many of them statutorily mandated. For instance, all town clerks perform certain core political duties for their towns in the conduct of elections, the town meeting and election recounts, pursuant to Maine law. The Topsham town clerk also performs other unique functions for the town, such as historic record preservation, that she does not delegate to her subordinates. These duties do not make her a department head, however. These are part of the day-to-day functions of her position as town clerk. These would be her functions even if she had no subordinates and there were no "office" of the town clerk.[fn]3 These official functions may support a finding that a town clerk holds a "core municipal position" and should be excluded from the definition of public employee under 26 M.R.S.A. 962(6)(B),[fn]4 ____________________ 3 A similar line of questioning, perhaps more detailed, was conducted regarding the unique functions of the tax collector. One example given regarding the unique duties of the tax collector was that he determines whether or not to relieve a citizen of a tax lien (Tr. 101), a function performed by the tax collector at his sole discretion. This was apparently presented in contradistinction to "day-to-day nondiscretionary tasks" performed by the subordinates of the tax collector (Tr. 103). This task is not necessarily distinguishable from the "day-to-day" functions of the tax office, because relieving liens is one of the functions of the tax office. The tax collector would be required to make this determination with or without a department to "head." For this reason, the tax collector is similarly situated to the town clerk -- both hold and perform the functions of a unique office, both supervise a small number of subordinates, and both perform many day-to-day functions required of their departments -- but their primary function is not to be the administrator of a department, thus neither are department heads within the meaning of 26 M.R.S.A. 962(6)(D). 4 This exception excludes persons appointed to office pursuant to statute, ordinance or resolution for a specified term of office by the executive head or body of the public employer. The position of town clerk has frequently been excluded pursuant to this exception as a "core municipal position," a position " . . . high enough in municipal government for political responsiveness to be expected, either through election or through fixed-term appointment." Teamsters Union Local 340 and City of Presque Isle, No. 92-UD-10, slip op. at 23, 25 (MLRB Aug. 18, 1992). See also Granite City Employees Association and City of Hallowell, No. 01-UD-04, slip op. at 14-23 (May 23, 2001) (town -27- _________________________________________________________________ but do not add to the conclusion that the position is a department head. As another hearing examiner has noted, the performance of important duties that require much skill and independent judgment does not make an employee a department head within the meaning of the MPELRL. AFSCME Council 93 and Town of Sanford, supra, slip op. at 35. The town clerk performs some administrative functions for the town clerk's office. For instance, under state law, the town clerk appoints the deputy clerk who serves at her will and pleasure. She creates and administers the budget for the department. She sets "policies" for the department, although the town presented little evidence to explain what this meant, exactly. For instance, if the town clerk created a policy regarding how records were to be maintained or how licenses were to be issued, it is difficult to see how this distinguishes her from any supervisor who attempts to give guidance to subordinates in the standard operating procedure of an office. In addition, certain functions of the office must be carried out in accordance with state law, regulation and procedure. Considering the evidence as a whole, the hearing examiner is unconvinced that the primary function of the town clerk's position is to be the administrator of the town clerk's office. As the Board previously noted on this issue, "excluding employees whose primary duties involve supervisory or rank-and-file work merely because these employees also perform some administrative duties would be contrary to the Act's purpose of granting employees the right to be represented in collective bargaining." Town of Wells, supra, slip op. at 8. For these reasons, the town clerk is not a "department head" ____________________ clerk excluded under 962(6)(B)); Town of Thomaston and Teamsters Local Union No. 340, No. 90-UC-03, slip op. at 15-18 (MLRB Feb. 22, 1990) (town clerk excluded under 962(6)(B), but not under 962(6)(D)). The Topsham town clerk is not appointed for a specified term of office, making this exception inapplicable here. -28- _________________________________________________________________ within the meaning of 26 M.R.S.A. 962(6)(D). She is a public employee within the meaning of the MPELRL and may remain in the Topsham Supervisory Unit. CONCLUSION The Town of Topsham's petition for unit clarification is granted in part and denied in part. The position of fire chief shall be excluded from the Topsham Supervisory Unit because the position is a department head within the meaning of 26 M.R.S.A. 962(6)(D). The position is not a "public employee" within the meaning of the MPELRL and thus may not be included in a bargaining unit. The positions of town clerk, tax collector, and planning director are not department heads within the meaning of 26 M.R.S.A. 962(6)(D). These positions are "public employees" within the meaning of the MPELRL and thus may continue to be included in the Topsham Supervisory Unit. Dated at Augusta, Maine, this 9th day of May, 2002. MAINE LABOR RELATIONS BOARD /s/_________________________ Dyan M. Dyttmer Hearing Examiner The parties are hereby advised of their right, pursuant to 26 M.R.S.A. 968(4), 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 Chapter 10 and Chap. 11 30 of the Board Rules. -29- _________________________________________________________________