Topsham and Local S/89 District Lodge #4 IAMAW, affirming 02-UC-01.
Affirmed by Superior Court AP-02-68.
STATE OF MAINE MAINE LABOR RELATIONS BOARD
Case No. 02-UCA-01
Issued: August 29, 2002
Town of Topsham, )
and ) DECISION AND ORDER ON
) UNIT CLARIFICATION
Local S/89 District Lodge #4, ) APPEAL
International Association of )
Machinists and Aerospace Workers, )
This unit clarification appeal was filed by the Town of
Topsham (Town) on May 24, 2002, pursuant to 26 M.R.S.A. 968(4)
and Chapter 11, 30 of the Rules and Procedures of the Maine
Labor Relations Board (Board). The unit clarification report
which is the subject of this appeal was issued on May 9, 2002.
In that proceeding, the Town sought a determination that the
positions of fire chief, town clerk, tax collector and planning
director were department heads within the meaning of 26 M.R.S.A.
962(6)(D) and therefore should be removed from the Town's
supervisory unit. The hearing examiner concluded that as the
position of fire chief met the requirements of the department
head exclusion, it should be removed from the supervisory unit.
On the other hand, the hearing examiner determined that the
positions of town clerk, tax collector and planning director
were not department heads and should therefore remain in the
supervisory unit. The Town appeals the latter determination.
After providing the parties the opportunity to submit
written briefs, the Board met July 17, 2002, to hear oral
argument. Linda McGill, Esq., represented the Town of Topsham,
and Mr. Brian Bryant attended representing Local S/89 District
Lodge #4, International Association of Machinists and Aerospace
Workers. After reviewing the decision below and the record of
evidence before the hearing examiner, we affirm the ultimate
conclusion that the positions of town clerk, tax collector and
planning director are not department heads as defined by section
962(6)(D). Our analysis differs somewhat from the analysis
presented by the hearing examiner and will be explained below.
The Town of Topsham is an aggrieved party within the meaning
of 26 M.R.S.A. 968(4), and is a public employer within the
meaning of 26 M.R.S.A. 962(7). Local S/89 District Lodge #4,
International Association of Machinists and Aerospace Workers, is
the bargaining agent within the meaning of 26 M.R.S.A. 962(2)
for a unit of supervisory employees in the Town of Topsham.
The jurisdiction of the Maine Labor Relations Board to hear this
appeal and to render a decision herein lies in 26 M.R.S.A.
The standard of review for bargaining unit determinations by
a hearing examiner is well established:
We will overturn a hearing examiner's rulings and
determinations if they are 'unlawful, unreasonable, or
lacking in any rational factual basis.'" Council 74,
AFSCME and Teamsters Local 48, MLRB No. 84-A-04 at 10
(Apr. 25, 1984), quoting Teamsters Local 48 and City
of Portland, MLRB Report of Appellate Review at 6
[78-A-10] (Feb. 20, 1979). It thus is not proper for us to
substitute our judgment for the hearing examiner's;
our function is to review the facts to determine
whether the hearing examiner's decisions are logical
and are rationally supported by the evidence.
MSAD #43 and SAD #43 Teachers Assoc., 84-A-05, at 3 (May 30,
1984), affirming No. 84-UC-05.
It is also important to emphasize that an appeal on a unit
matter is not a de novo hearing. Chapter 11, 30(1) of our rules
states very clearly that "the Board reviews the decision of the
hearing examiner on the basis of the evidence presented to the
examiner."[fn]1 We therefore deny the Town's request, stated in
footnote 3 of the Town's brief to the Board, to consider evidence
submitted after the hearing and after the issuance of the hearing
examiner's unit clarification report.
The Town of Topsham appeals the hearing examiner's
conclusion that the town clerk, the tax collector and the
planning director are not department heads within the meaning of
26 M.R.S.A. 962(6)(D). Section 962(6)(D) excludes from the
protections of the Act any person:
D. Who is a department head or division head appointed
to office pursuant to statute, ordinance or resolution
for an unspecified term by the executive head or body
of the public employer;
The hearing examiner correctly stated that in order for a person
to be excluded under this paragraph, an individual must a) be
appointed to office pursuant to statute, ordinance or resolution,
b) for an unspecified term, c) by the executive head or body of
the employer and d) the primary function of the position must be
managerial or administrative, rather than merely supervisory.
The hearing examiner concluded that the evidence did not support
the Town's assertion that the positions were appointed by the
executive head or body of the Town and, even if they were, none
of the positions were functionally department heads within the
meaning of the statute. The Town has appealed both of these
The hearing examiner made numerous findings regarding the
appointment process of the positions in question and the
management structure of the Town. We agree with all of these
1 For a full explanation of the policies underlying this rule
see, e.g., MSAD 14 and East Grand Teachers Assoc., No. 83-A-09, at 4-6
(Aug. 24, 1983); and Teamsters Local Union No. 48 and City of
Portland, No. 78-A-10, at 5-6 (Feb. 20, 1979).
factual findings with the exception of the finding that the
"executive head or body" of the Town is the five-person board of
selectmen. On the contrary, we conclude that the town manager is
the executive head of the municipality.
This Board has never directly addressed the question of
whether appointments by a town manager alone can be considered
appointments to office by the "executive head or body" as
required in 962(6)(D). For that matter, this Board has never
directly been asked to determine whether a town manager can be
considered the "executive head" of a municipality. We have had
occasion, however, to look at a city charter for clarification of
the executive authority or specific appointment authority of a
city manager, a mayor or the city council. See, Teamsters Union
Local 340 and City of Presque Isle, No. 92-UD-10 (Aug. 18, 1992);
and AFSCME, Council 93 and Town of Sanford, No. 92-UD-03
(Feb. 21, 1992), aff'd, No. 92-UDA-03 (May 9, 1992). See also,
Page v. Stewart, No. CV-86-663, York Cty. Sup. Ct. (Apr. 22,
1988) (concluding that Saco's city charter shows that the mayor
is the executive head, the city council executive body). If the
city charter requires an appointment to be made by or confirmed
by the city council, we require evidence of such an action.
See, Teamsters Local Union No. 48 and City of Saco, No. 80-UD-34
(June 20, 1980). After all, it is the city charter that
establishes the executive authority within that city and
compliance with the charter is a necessity. See, e.g., Presque
Isle, No. 92-UD-10, at 19 (hearing examiner refused to accept
city's argument that it could choose to ignore the requirements
of its own charter). Similarly, if a municipality is organized
under Maine's statutory provisions referred to as the "Town
Manager Plan," the provisions of that statute control the exec-
utive structure of the Town. The statute itself says that the
Town Manager Plan, "together with general law not inconsistent,
shall govern any town in which the voters have adopted [the
plan]." 30-A M.R.S.A. 2631(1).
The hearing examiner concluded that the board of selectmen
was the "executive head or body" (and that the town manager was
not). This conclusion was based on consideration of certain
sections of the Town Manager Plan, the testimony of the town
manager, those portions of the town code introduced as evidence,
and other decisions of this Board and hearing examiners applying
the "executive head or body" language. We think the plain
language of the Town Manager Plan compels a conclusion that
the town manager is the executive head and the selectmen the
executive body of the town.
The Town Manager Plan provided in Title 30-A governs any
town in which the voters have adopted the plan at an annual town
meeting, as Topsham did in 1991. Of the eight substantive
sections in the Town Manager Plan, we consider two particularly
helpful in determining the executive authority of the town
manager.[fn]2 The first is the section generally describing the
authority of the board of selectmen:
Section 2635. Board of selectmen to act as a body;
administrative service to be performed through town
It is the intention of this subchapter that the
board of selectmen as a body shall exercise all
administrative and executive powers of the town except
2 Section 2631, which permits towns to adopt the Town Manager
Plan, includes a general description of the plan in subsection 2.
2. Government. The government of each town under this
subchapter shall consist of a town meeting, an elected board
of selectmen, an elected school committee, an appointed town
manager and any other officials and employees that may be
appointed under this subchapter, general law or ordinance.
Other town officials may be elected by ballot, including,
but not limited to, moderator, assessors, overseers of the
poor, clerk and treasurer. The election of officials at the
last annual town meeting shall require that those town
offices continue to be filled by election until the town
as provided in this subchapter. The board of selectmen
shall deal with the administrative services solely
through the town manager and shall not give orders to
any subordinates of the manager, either publicly or
privately. This section does not prevent the board of
selectmen from appointing committees or commissions of
its own members or of citizens to conduct investiga-
tions into the conduct of any official or department,
or any matter relating to the welfare of the town.
In addition, 30-A M.R.S.A. 2636 sets out the powers and
duties of the town manager in fourteen subsections.[fn]3 Four
of the subsections are particularly telling in this matter. They
provide that the town manager:
1. Executive and administrative officer. Is the
chief executive and administrative official of the
2. Administer offices. Is responsible to the
selectmen for the administration of all departments and
offices over which the selectmen have control; . . .
5. Appoint department heads. Shall appoint,
subject to confirmation by the selectmen, supervise and
control the heads of departments under the control of
the selectmen when the department is not headed by the
town manager under subsection 4;
6. Appoint town officials. Unless otherwise
provided by town ordinance, shall appoint, supervise
and control all town officials whom the municipal
officers are required by law to appoint, except members
of boards, commissions, committees and single
3 These subsections provide that the town manager: is the chief
executive and administrative official of the town; is responsible for
the administration of all departments; executes the town's laws and
ordinances; serves as the department head when directed by the
selectmen; appoints, subject to confirmation by the selectmen, and
supervises department heads; appoints and supervises all other town
officials and subordinates; acts as purchasing agent; attends all
selectmen meetings; makes recommendations to the selectmen on the
operation of the town; attends all town meetings; keeps the selectmen
informed on town's financial condition; collects budget data; assists
residents and taxpayers in discovering their lawful remedies in
various complaints; and has exclusive authority to remove for cause
persons whom the manager is authorized to appoint and report all
removals to the board of selectmen.
assessors; and appoint, supervise and control all other
officials, subordinates and assistants, except that the
town manager may delegate this authority to a
department head and report all appointments to the
board of selectmen; . . . .
The provisions of the Town Manager Plan cited above indicate
that municipalities organized under that plan have an executive
body (the board of selectmen) which shares its executive
authority with the executive head (the town manager). Accord,
Portland Administrative Employees Assoc. v. Portland Superin-
tending School Committee, No. 86-UD-14, at 23 (Oct. 27, 1986)
(superintendent is executive head and school committee is
executive body); Page v. Stewart, CV-86-662 (Apr. 22, 1988)
(mayor is executive head and city council is executive body).
The respective authorities of the executive head and the
executive body are both established by and limited by the plain
language of the Town Manager Plan. Given this statutory
framework, we find no special significance in the fact that
Topsham's town manager does not have exclusive authority in all
matters nor in the fact that the board of selectmen is "above"
the town manager and may remove the town manager for cause.
In presenting her analysis, the hearing examiner reviewed a
number of unit decisions and found that appointment by or at
least confirmation by the selectmen was required to satisfy the
appointment requirement of the Municipal Public Employees Labor
Relations Law (Act). Upon close examination, the cases indicate
that the involvement of the selectmen was not relied upon to
conclude that the appointment was made by the executive head or
body,[fn]4 but, rather, confirmation by the selectmen served to
satisfy the requirement that the appointment be "pursuant to
4 An exception to this statement is Teamsters Union Local #340
and Town of Boothbay Harbor, Nos. 99-UD-03 & 99-UD-05 (Jan. 20, 1999),
in which the hearing examiner incorrectly stated that involvement of
the selectmen was necessary to meet the requirement that the
appointment was made by the executive head or body of the
statute, ordinance or resolution." See, Teamsters and City of
Saco, No. 80-UD-34, at 5 (June 20, 1980) (confirmation by city
council, "whether by 'resolution' or act of other terminology,"
satisfies the required degree of importance and formality
associated with the phrase); AFSCME and Town of Paris,
No. 97-UD-14, at 11 (Oct. 1, 1997) (although no specific statute governs
appointment of road foreman, the fact that two selectmen were
involved in interview and the appointment was confirmed by board
satisfies the "degree of importance and formality needed to
satisfy the Act's [appointment] require-ment"), quoting Teamsters
and City of Saco, No. 80-UD-34, at 5; Teamsters Local Union No.
48 and Town of Lebanon, No. 86-UD-02, at 9 (Oct. 17, 1985)
(appointment by "resolve" of the board satisfies requirement that
appointment be pursuant to statute, ordinance or resolution),
appealed on other grounds, No. 86-A-01 (Dec. 5, 1985), aff'd
Inhabitants of the Town of Lebanon v. Maine Labor Relations Board
and Teamsters Local Union No. 48, No. CV-85-656, Fra. Cty. Super.
Ct. (Feb. 3, 1987).
Other cases that the hearing examiner cited for the
proposition that at least confirmation by the board is required
to be an appointment by the executive head or body are in reality
decisions requiring confirmation when the cited statute or
ordinance requires confirmation. See, Town of Thomaston and
Teamsters Local Union 340, 90-UC-03, at 16 (Feb. 22, 1990) (town
ordinance requires selectmen to appoint town clerk); Teamsters
Union Local 340 and City of Presque Isle, No. 92-UD-10 (Aug. 18,
1992) (city charter required confirmation of city manager's
appointments); Page v. Stewart, No. CV-86-663, at 7, York Cty.
Sup. Ct. (Apr. 22, 1988) (confirmation of department heads by
city council was required by city charter). Concluding that the
town manager is the executive head of Topsham does not, however,
end the inquiry in this case.
As the Town Manager Plan is the source of the town manager's
authority, the limitations on that authority specified in that
statute must also be controlling. The Town Manager Plan is
unambiguous regarding the appointment of department heads.
Section 2636, subsection 5 states: "[The town manager] shall
appoint, subject to confirmation by the selectmen, supervise and
control the heads of departments . . . ." Confirmation by the
selectmen is not presented as an option. When read in conjunc-
tion with 26 M.R.S.A. 962(6)(D), which excludes a department
head "appointed to office pursuant to statute, ordinance or
resolution," it is clear that in order to be appointed to office
pursuant to statute, the statute must be followed.
Furthermore, the confirmation step in the appointment
process is what distinguishes the appointment of department heads
from ordinary hires under the Town Manager Plan. Our case law
has identified the "appointed to office pursuant to statute,
ordinance or resolution" phrase as a requirement intended to
distinguish those who are deprived of the protections of the Act
under 962(6)(D)[fn]5 from public employees covered by the Act.
In a decision issued over twenty years ago, the hearing examiner
held that police captains were not divisions heads under
962(6)(D) because they were not "appointed to office pursuant to
statute, ordinance or resolution." The hearing examiner
explained the rationale underlying the decision:
. . . The only record evidence is that according to
statute (the City Charter) the City Administrator has
the unrestricted authority to appoint all employees
except for department heads. Clearly, every legally
hired municipal employee in the state is appointed
pursuant to some legal authority. That legal authority
must invariably stem from a statute, ordinance or
resolution. Yet if that is all that the phrase means,
then it is a meaningless redundancy.
5 This also applies to 962(6)(B), which 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 . . . ."
In contrast, there is a relatively strong case to
be made for the proposition that the phrase means
specifically appointed to office pursuant to statute,
ordinance or resolution. A good example of this is the
Chief of Police, clearly a department head in the City
organization, who is appointed by the City Administra-
tor and, significantly, confirmed by the City Council.
This confirmation by the City Council, whether by
"resolution" or act of other terminology, satisfies
that degree of importance and formality that would seem
to be required to satisfy this phrase. Such specific
appointment authority does not apply in the case of the
captains, however, and thus they would not be excepted
even if considered division heads.
Teamsters and City of Saco, No. 80-UD-34, at 5 (June 20, 1980).
In the decades since that hearing examiner's decision was issued,
its basic proposition that an individual must be specifically
appointed to an office under some form of statute, ordinance or
resolution beyond a general grant of hiring authority has held
strong. See City of Presque Isle, No. 92-UD-10, at 21 (Aug. 18,
1992) (legislature did not intend to give municipalities free
rein to exclude employees from the protections of the Act under
962(6)(B) by simply passing ordinances authorizing appointments
for fixed terms); Bangor Education Association and Bangor School
Committee, No. 80-UC-02, at 8-9 (Nov. 16, 1979) ("election" of
Title I Director is same hiring process used for teachers and
cannot be viewed as the more significant "appointment to office"
required by Act); Teamsters Union Local 48 and Boothbay Harbor
Water System, No. 92-UD-09, at 7, n. 4 (May 11, 1982) (appoint-
ment must be formal and cannot merely be an informal hire);
Teamsters and Town of Boothbay Harbor, Nos. 99-UD-03 & 99-UD-05,
at 32 (Jan. 20, 1999) ("there must be some greater significance
to the appointment than the general hiring process").
Comparing the provisions of the Town Manager Plan regarding
appointments of department heads with the provision governing the
appointment of other positions underscores the necessity of the
confirmation element in the appointment process to distinguish
these positions sufficiently for exclusion to apply. While 30-A
M.R.S.A. 2636, subsection 5 states that the town manager "shall
appoint, subject to confirmation by the selectmen, supervise and
control the heads of departments," the next subsection states
that the town manager:
. . . shall appoint, supervise and control all town
officials whom the municipal officers are required by
law to appoint, . . . and appoint, supervise and
control all other officials, subordinates and
assistants, except that the town manager may delegate
this authority to a department head . . . ."
30-A M.R.S.A. 2636(6). If we were to ignore the confirmation
requirement for department heads, their appointment process would
be indistinguishable from the process for "appointing" employees
generally. For these reasons, we conclude that in those towns
operating under the Town Manager Plan, a department head is not
"appointed to office" until and unless confirmation by the board
of selectmen has occurred.
As mentioned previously, the hearing examiner concluded that
the board of selectmen was the "executive head or body" of the
municipality and that appointment or at least confirmation by
that board was required to meet the requirement of 962(6)(D).
Consequently, the examiner's search for evidence of confirmations
was made in an effort to show that the appointments were made by
"the executive head or body." Under our analysis, evidence of
confirmation is needed to show compliance with the requirement in
30-A M.R.S.A. 2636(5) that department heads be confirmed by the
selectmen and to distinguish department head appointments from
the process for ordinary hires. Thus, even though our analysis
of the appointment authority is different, the factual conclu-
sions of the hearing examiner on whether confirmation occurred
apply equally well.
The hearing examiner concluded that the tax collector and
the planning director were appointed by the town manager but not
confirmed by the board of selectman. After reviewing the record,
we find that the hearing examiner's conclusions in this regard
were not unlawful, unreasonable, or lacking in any factual basis.
There is simply no evidence in the record that either the plan-
ning director or the tax collector were confirmed by the board.
With respect to the town clerk, the hearing examiner noted
that the evidence was unclear whether the town clerk was
appointed by the town manager or the board of selectmen. The
hearing examiner stated she "would be justified in finding that
the town has not met its ' . . . responsibility of producing
evidence to support its contentions'" that the town clerk should
be excluded under 962(6)(D). The hearing examiner felt it was
unnecessary to make such a finding because, in any event, the
town clerk was not a department head under the primary function
We agree with the hearing examiner's statement that the Town
failed to produce evidence to support its contention that the
town clerk was confirmed by the selectmen. The hearing examiner
was correct in observing that the Town had not met its
"responsibility of producing evidence to support its contentions"
regarding the exclusion of the town clerk from the protections of
the Act. We think it is essential to the proper enforcement of
the Act for a party seeking to exclude a position from coverage
to provide sufficient evidence to support that position. This
requirement is the obvious corollary to the requirement that we
narrowly construe exceptions in order to avoid defeating the
purpose of the Act of granting public employees the right to
bargain collectively. State of Maine and Maine State Employees
Assoc., No. 82-A-02, at 6 (June 2, 1983).
The Town argues that we should assume that the appointments
were confirmed by the selectmen as required by statute because
"the Town Manager did not testify that the select board did not
confirm the appointments." The Town further explains its
position in footnote #3 of its brief with the argument that,
. . . the unrebutted testimony of the Town Manager that
the positions are subject to appointment under the Town
Manager Plan carries with it the logical inference that
such appointments were made in compliance with the
We find it problematic to assume that the mere existence of a
statute is equivalent to proof that a municipality has complied
with that statute. Drawing inferences of compliance, even if
they were "logical," is not consistent with the requirement that
we narrowly construe exceptions to the definition of public
Although the Town acknowledges the requirements of the Town
Manager Plan as indicated above, the Town also relies on a
provision of the town code to establish the town manager's
appointment authority.[fn]6 Section 6-47 of its code states:
Effective at the Annual Town Meeting in 1991, the
positions of Road Commissioner, Treasurer, Tax
Collector and 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.
There are two problems with this proposition: Section 6-47 of
the Town Code by its terms requires the appointment of the
positions to be "by the Selectmen and . . . by the Town
Manager."[fn]7 Clearly, as the Town has adopted the Town Manager
Plan, the "and" requires both the selectmen and the town manager
make the appointment. The Town seems to be reading the "and" as
an "or." Thus, even if this were the statute or ordinance
6 The hearing examiner relied upon section 6-47 for the
requirement that the appointment be "pursuant to statute, ordinance or
resolution" and did not discuss the significance of 2636(6) of the
Town Manager Plan. We conclude that the appointment process for
department heads specified in the Town Manager Plan controls.
7 Furthermore, as the hearing examiner pointed out, there is no
reference in this section or anywhere in the Town code authorizing the
appointment of the planning director.
pursuant to which the appointments were made, we could not ignore
the plain meaning of that authorizing statute.
Another problem with relying on section 6-47 as the Town
suggests is that reading it to give the town manager sole
authority to appoint the listed positions would, when those
positions serve as department heads, be inconsistent with the
provisions of the Town Manager Plan in Title 30-A.[fn]8 As mentioned
above, section 2636(5) requires that the town manager's appoint-
ment of department heads be confirmed by the board of selectmen.
To the extent that any position is a department head, the statute
governing the appointment of department heads must apply regard-
less of whether the job title fits within some other appointment
process specified in a town code.
In summary, we agree with the hearing examiner's conclusion
that the town clerk, the tax collector and the planning director
are not department heads excluded from the Act because they were
not "appointed to office pursuant to statute, ordinance or
resolution . . . by the executive head or body of the public
employer." The hearing examiner's conclusions were not
unreasonable, illegal, or lacking in any rational factual basis.
Because we uphold the hearing examiner's decision on this basis,
there is no need to address the question of whether these three
positions would be considered department heads under the primary
On the basis of the foregoing findings of fact and
discussion and pursuant to the powers granted to the Maine Labor
Relations Board by the provisions of 26 M.R.S.A. 968(4), it is
8 Section 6-46(B) of the Town code (adopting the Town Manager
Plan) states " . . . any provision in the Code, ordinances, rules or
regulations of the town which is inconsistent with the Town Manager
Plan is hereby repealed." (Exhibit E-1).
that the May 24, 2002, appeal of the Town of Topsham,
filed with respect to the May 9, 2002, unit clarifica-
tion report in Case No. 02-UC-01, is denied and
the report is affirmed as set forth above.
Dated at Augusta, Maine, this 29th day of August, 2002.
The parties are hereby advised MAINE LABOR RELATIONS BOARD
of their right, pursuant to
26 M.R.S.A. 968(4) (Supp.
2001) to seek review of this /s/___________________________
Decision and Order on Unit Peter T. Dawson
Clarification Appeal by the Chair
Superior Court. To initiate
such a review an appealing
party must file a complaint /s/___________________________
with the Superior Court within Nelson J. Megna
fifteen (15) days of the date Employer Representative
of issuance of this decision
and order, and otherwise
comply with the requirements /s/___________________________
of Rule 80C of the Maine Rules Carol B. Gilmore
of Civil Procedure. Employee Representative