STATE OF MAINE

MAINE LABOR RELATIONS BOARD
Case No. 14-UD-03
Issued: April 8, 2014

TEAMSTERS UNION LOCAL 340
Petitioner,

and

TOWN OF WARREN
Respondent

 

UNIT DETERMINATION REPORT

 

	  PROCEDURAL HISTORY

     This unit determination proceeding was initiated on 
August 28, 2013, when Brett Miller, Secretary-Treasurer and
Business Agent of Teamsters Union Local 340 (hereinafter referred
to as "Teamsters"), filed a petition for unit determination with
the Maine Labor Relations Board ("Board").  The petition sought a
determination whether "6 public works employees (highway workers)
drivers" of the Town of Warren constituted an appropriate
bargaining unit for purposes of collective bargaining.  The Town
of Warren ("Town") filed a timely response to the petition,
challenging the sufficiency of the showing of interest filed in
support of the petition, objecting to the appropriateness of the
proposed bargaining unit, suggesting that an appropriate unit
would consist of the 3 regular full-time, non-supervisory
employees in the highway worker/driver classification, and
alleging that the Highway Supervisor should be excluded from the
proposed unit on the grounds that the position is supervisory
within the meaning of 26 M.R.S.A. § 966(1).

[end of page 1]

     A unit determination hearing notice was issued on 
January 9, 2014, and was posted for the benefit of affected
employees.  The hearing was conducted on January 29, 2014.  
The Teamsters were represented by Mr. Miller and the Town was
represented by William S. Kelly, Esq.  The parties were afforded
full opportunity to examine and cross-examine witnesses, to
present evidence, and to make argument.  The following witnesses
were presented:  for the Petitioner:  Highway Supervisor Doug
Gammon; for the Town:  Town Manager Elaine Clark and 
Mr. Gammon.  At the hearing, the Town expanded its position
regarding the exclusion of the Highway Supervisor position from
the proposed bargaining unit, alleging that the Supervisor was a
department or division head, within the meaning of 26 M.R.S.A.   
§ 962(6)(D), and could not lawfully be included in any bargaining
unit pursuant to 26 M.R.S.A. § 966(1).  The parties presented
their respective arguments through post-hearing briefs, which were
timely filed and duly considered in reaching this unit
determination decision. 

                           JURISDICTION
     The jurisdiction of the executive director to hear this
matter and to make an appropriate unit determination lies in 26
M.R.S.A. § 966(1) and (2).  The subsequent statutory references in
this report are to Title 26, Maine Revised Statutes Annotated,
unless otherwise noted.

                            STIPULATION
     The parties agreed that the three full-time employees in the
Highway Worker/Driver classification at the Warren Public Works
Department, together, constitute an appropriate bargaining unit
for purposes of collective bargaining.

[end of page 2]

                             EXHIBITS
     The following exhibits were offered by the Town without
objection by the Union, and were admitted into the record:

     Town Exh. No. 1   Town of Warren Personnel Policy, as
                       amended August 21, 2013
     Town Exh. No. 2   Warren Public Works Employee Roster
     Town Exh. No. 3   Warren Public Works Programs and 
                       Projects Organizational Chart
     Town Exh. No. 4   Letter from Interim Town Manager Glenn E.
                       Aho to Mr. Doug Gammon, dated 
                       November 28, 2012, titled Appointment
                       Letter
     Town Exh. No. 5   Public Works Director Job Description,
                       adopted by Warren Board of Selectmen,
                       Sept. 12, 2007
     Town Exh. No. 6   Memorandum from Doug Gammon to [name
                       redacted] re: workplace performance and 
                       behavior, dated January 16, 2013
     Town Exh. No. 7   Town of Warren Employee Evaluation Form 
                       for employee Doug Gammon, PW Supervisor,
                       completed by Glenn Aho, dated 7/12/13
     Town Exh. No. 8   Mechanic/Truck Driver Job Description
     Town Exh. No. 9   Town of Warren Employee Evaluation Form,
                       Public Works Department, revised 4/30/13
     Town Exh. No. 10  Town of Warren Monthly Activity Report,
                       Public Works - Doug Gammon, September  
                       2013; Town of Warren, Capital Request 
                       Form, Calendar Year 2014 (draft)
                       completed by Doug Gammon 
     Town Exh. No. 11  Position vacancy notice, seasonal/
                       temporary plow truck drivers, posted
                       October 25, 2013
     Town Exh. No. 12  Town of Warren, Time Away Requests for
                       various Public Works employees, approved
                       by Doug Gammon, 6 pp.
     Town Exh. No. 13  Town of Warren, Oath of Office for
                       Douglas Gammon as "Public Works 
                       Supervisor for a one year term (Expires
                       2013)," dated Nov. 30, 2012.
     Town Exh. No. 14  Copy of Town Exh. 4, signed by Interim
                       Town Manager Glenn E. Aho and "Seen and
                       Agreed" signed by Douglas Gammon, 
                       Dec. 12, 2012    
          
[end of page 3]



                  FINDINGS OF FACT AND DISCUSSION

     The Warren Public Works Department consists of four regular
full-time employees, the Public Works Director/Highway Supervisor
and three Highway Worker/Drivers.  In winter months, the
department also has a seasonal/temporary Plow Truck Driver, who is
on-call for snow and ice control events.  At the outset of the
unit determination hearing, the Petitioner clarified that the
Petition for Unit Determination seeks creation of a bargaining
unit consisting of the four regular full-time employees. 
 
     Three issues are presented in this case:  1) is the Warren
Public Works Director/Highway Supervisor a public employee within
the meaning of the Act or is he exempt pursuant to § 962 (6)(D);
2) if the Director/Supervisor is a public employee, is he a
supervisor who should not be included in the same bargaining unit
as the employees he supervises, and 3) does the Director/
Supervisor share a clear and identifiable community of interest
with the employees in the Highway Worker/Driver classification so
as to warrant inclusion of both classifications in the same
bargaining unit.

Public Employee Status of the Warren Public Works Director/Highway
Supervisor

     The Town contends that the Director/Supervisor is a
department head, within the meaning of § 962(6)(D), is exempt from
the coverage of the Act, and under § 966(1) may not be included in
any bargaining unit.  The Act is remedial in nature; therefore,
the exclusions must be narrowly drawn to effectuate the
fundamental purpose of the statute and are to be strictly
construed.  Teamsters Union Local 340 and Town of Van Buren, Case
Nos. 13-UD-07 & 13-UD-08, slip op. at 25 (December 10, 2013),
citing, State of Maine and MSEA, No. 82-A-02, First Interim Order,
slip op. at 6 (MLRB June 2, 1983).  To be exempt from coverage of


[end of page 4]

the Act as a department head requires that the individual be
"appointed to office pursuant to statute, ordinance or resolution
for an unspecified term by the executive head or body of the
public employer."  Article 2:04 of the Town's Personnel Policy
provides that all Town employees are "appointed" by the Town
Manager.  Consistent with the provisions of Title 30-A M.R.S.A. 
§ 2636(5), the personnel policy goes on to require that "positions
of Department Head status are appointed by the Town Manager and
confirmed by the Board of Selectmen."  

     There is no direct evidence regarding how Mr. Gammon came to
occupy his current position.  Ms. Clark and Mr. Gammon testified
that he began in the position on August 8, 2012.  Town Exh. 14,
was dated November 28, 2012, and was signed by Mr. Aho, who did
not become the Warren Interim Town Manager until November of 2012. 
 In addition, Mr. Gammon was not sworn into office by the Town
Clerk until November 30, 2012.  Ms. Clark testified that she
reviewed the Town records and that "the typical copy of an
appointment signed by all the selectmen" was not in Mr. Gammon's
file.  The evidence in the record fails to establish that 
Mr. Gammon's appointment to the position of Public Works Director/
Supervisor was confirmed by the Selectmen, a requirement under
both State law and the Town's Personnel Policy; therefore, I
cannot conclude that he is a department or division head within
the meaning of § 962(6)(D).  I hold that Mr. Gammon is a public
employee within the meaning of § 962(6) of the Act.

Supervisory Status of the Highway Supervisor

     Unlike the National Labor Relations Act, which controls
collective bargaining for private sector employees and prohibits 
supervisory employees from being represented for purposes of
collective bargaining, public sector supervisory employees in 

[end of page 5]

Maine not only are granted bargaining rights, but they may even be
included in the same bargaining unit as the employees they
supervise.  Such unit inclusion is left to the sound discretion of
the hearing examiner, guided by the following provision in
§ 966(1):

     In determining whether a supervisory position should be
     excluded from the proposed bargaining unit, the
     executive director or his designee shall consider, among
     other criteria, if the principal functions of the
     position are characterized by performing such management
     control duties as scheduling, assigning, overseeing and
     reviewing the work of subordinate employees, or
     performing such duties as are distinct and dissimilar
     from those performed by the employees supervised, or
     exercising judgment in adjusting grievances, applying
     other established personnel policies and procedures and
     in enforcing a collective bargaining agreement or
     establishing or participating in the establishment of
     performance standards for subordinate employees and
     taking corrective measures to implement those standards.

The intent of this three-part test is to determine whether an
individual supervisor exercises a sufficient level of control over
employment-related matters that would likely result in a conflict
of interest.  See Richmond Employees Ass'n and Town of Richmond,
No. 94-UD-09, slip op. at 30 (MLRB Apr. 26, 1994).
     
     The first prong of the § 966(1) test requires an evaluation
of whether the principal functions of the Highway Supervisor
involve scheduling, assigning, overseeing and reviewing the work
of the employees supervised.  The Supervisor does very little
scheduling.  The public works crew, consisting of three regular
employees and the Supervisor, has a standard workday, Monday
through Friday, from 7:00 A.M. to 3:30 P.M., with a half-hour
lunch period from 11:30 A.M. to Noon.  Outside of normal business
hours during winter, the Supervisor monitors road conditions and,
using equipment he carries in his truck, determines that the roads
need treatment or plowing.  If such work is required, the 

[end of page 6]

Supervisor calls out the crew and drives a plow route himself,
incurring overtime expense for the Town.  The Knox County
Sheriff's Department can also determine that road conditions
require action by the public works crew.  The Highway Supervisor
approves employee requests for paid time off; however, the Town
Manager testified that she was unsure whether the Supervisor
consults with the Town Manager before approving such requests.

     In most instances, the public works crew operates as a four-
person team, so assigning work is not a major task.  The three
employees and the Supervisor work interchangeably, performing the
various tasks on the job site.  Occasionally, a job requires a
smaller crew or involves greater skill operating heavy equipment.
The Supervisor assigns such work, based on his knowledge of each
employee's skills and abilities.

     The Supervisor reviews the work of the public works
employees, informally through daily observation and comment.    
In addition, the Supervisor performs a formal employee performance
evaluation annually, noting the employee's strengths and
weaknesses, suggesting areas for improvement, and recommending
training that would be helpful.  While the performance evaluation
form indicated a minimum numerical score required for the employee
to be "eligible for wage increases," there was no evidence in the
record of any employee having received a wage adjustment based on
the evaluations.  In addition, the performance evaluation form
contains a signature line for the Town Manager and there was no
evidence regarding the weight accorded to the evaluations in
actual practice.  Given that most of the Supervisor's time is
spent working alongside and performing the same job duties as the
other department employees, it is difficult to conclude that 

[end of page 7]

supervisory functions constitute the "principal functions" of the
Supervisor's employment with the Town.[fn]1   

     The second prong of the supervisory employee test is that the
person performs duties that are distinct and different from those
of the employees supervised.  This criterion was explained in
State of Maine and MSEA, No. 91-UC-04, slip op. at 15 (MLRB   
Apr. 17, 1991), as follows:

     [D]uties comtemplated by the "distinct and dissimilar"
     criterion include those in connection with hiring (or
     making recommendations), transfers, layoffs and recalls,
     and promotions - duties that substantially align the
     interests of the supervisor with the interests of the
     employer and cause conflicts of interests [with other
     employees].

There is no evidence in the record regarding the role, if any, 
the Supervisor has played in hiring, layoffs and recalls, or
promotions of any of the regular public works employees that the
Town agrees should be in the bargaining unit.
  
     The Public Works Department has funding for a seasonal
employee to work in the winter months.  On October 25, 2013, a
position vacancy announcement was issued by the Town, seeking
candidates to fill the seasonal position for the 2013-14 winter 
season.  Based on his knowledge of the work to be performed and 
the necessary qualifications for a successful candidate the   
Supervisor drafted questions for the interview process.  Two  
candidates were interviewed by the Town Manager.  The Supervisor
participated in the interview of one candidate; the other      
candidate was interviewed while the Supervisor was on vacation and

     1 There are circumstances in which a supervisor, who spends most of
their time performing the same work as the employees supervised, is
nevertheless primarily engaged in supervision, such as where the subordinate
employees are inexperienced and require constant supervision and direction. 
See, Freeport Police Benevolent Association and Town of Freeport, No. 12-UD-05,
slip op. at 7-8 (June 19, 2012), aff'd, 13-UDA-01, (MLRB Nov. 29, 2012).

[end of page 8]

one of the other full-time public works employees participated in
the interview.  The successful candidate was chosen by the Town
Manager.  Before the hiring process was completed, an extra hand
was required, so the Supervisor hired a per diem employee, pending
completion of the process.

     Subsequent to the hiring of the seasonal employee, one of the
regular public works employees became very ill, requiring
hospitalization.  During the winter months, the Supervisor, the
three Highway Worker/Drivers, and the seasonal employee are all
needed to cover the 5 plowing routes required to keep the Town
roads safe and passable.  The Town Manager and the Supervisor
decided to hire the unsuccessful candidate for the seasonal
position as a temporary replacement for the ill employee.

     Additional "distinct and dissimilar" duties performed by the
Supervisor include preparation of the annual departmental budget,
including capital project requests; overseeing maintenance and
repair of the Town equipment; preparation of monthly reports to
the Selectmen, summarizing public works activities, equipment, and
personnel for the month; and serving as the contact person for
citizen complaints.

     It is easy to understand how preparation of a departmental
budget in some circumstances could result in the alignment of the
preparer with management and result in conflicts with the
department employees.  In the present case, the Supervisor
prepares a "current services" budget for the department, costing
out the personnel, equipment, and materials costs for each of the
projects planned, based on the prior year's experience.         
On capital projects, the Supervisor requests that the work be
authorized and estimates cost.  The impact of the Supervisor's
budget work is attenuated here both by the amount of effort he
dedicates to the task and to the nature of the Town's budget- 

[end of page 9]

approval process. The Supervisor works on the department budget
once a year and testified that involves "five, six hours, total." 
Second, the Supervisor presents his draft budget to the Town
Manager for review and approval; the Supervisor then presents the
resulting budget to the Board of Selectmen and the Town Budget
Committee; and finally the budget is presented to the Town Meeting
for review and final approval by the citizens.

     The Supervisor's discretion in overseeing the maintenance and
repair of the Town equipment is similarly limited.  When a piece
of equipment requires maintenance or repair, the Supervisor
secures estimates for the work, draws up a purchase order, and
presents it to the Town Manager for review and approval.  This
applies to all public works expenditures, including budgeted
items.  Neither this activity nor the preparation of the general
monthly activities report to the Selectmen in any way creates a
conflict of interest between the Supervisor and the other
employees.

     The final evidence provided by the Town relating to the
"distinct and dissimilar" criterion was the Town Manager's
testimony that the Supervisor handles all citizen complaints that
relate to the public works department or to town roads in general. 
On the other hand, the Supervisor testified that one of the other
public works employees is the department's "mailbox officer,"
responding to plow mailbox strikes and other mailbox issues.    
In addition, the Supervisor stated that another employee was the
first to respond to a citizen's concern regarding a school bus
turn-around, one of the examples of the Supervisor's "distinct and
dissimilar" activities cited by the Town Manager.  In the
circumstances, I conclude that while the Supervisor may be
responsible for responding to citizen inquiries, he often
delegates that function to other department employees.

[end of page 10]
          
     The other examples of the Supervisor's "distinct and
dissimilar" functions neither tend to align the Supervisor with
management nor are likely to give rise to conflicts with the other
regular department employees.  I conclude that the Supervisor does
not perform "distinct and dissimilar" functions within the meaning
of the second time of the § 966(1) test.

     The third prong of the supervisory employee test is whether
the individual in question exercises discretion in adjusting
grievances, applying established personnel policies, or
participates in establishing performance standards for the
subordinate employees and takes corrective action to assure
compliance with those standards.  Once again, the thrust of this
criterion is whether the position in question is more closely
aligned with management and should, therefore, be assigned to a
different bargaining unit than the other employees to avoid
conflicts of interest with them.

     In presenting its case, the Town quite appropriately stressed
the relationship between the Supervisor's authority pursuant to
the Town Personnel Policy to impose discipline on the subordinate
employees and to adjust grievances.  Like the other two prongs of
the § 966(1) test, the degree of discretion permitted to be
exercised in these areas helps to define what a supervisor is and
does in practice.  Article V, § 5:03 of the Warren Personnel
Policy states:

     A department supervisor shall have the right to give
     counseling, verbal or written reprimands to an employee
     within the supervisor's department whose work
     performance or conduct justifies such action.  Matters
     potentially requiring further discipline shall be
     referred to the Town Manager for action.  A copy of all
     disciplinary or investigative materials will be placed
     in the personnel file.  The employee shall have the
     right to appeal as outlined in the grievance procedure.


[end of page 11]

This section goes on to provide that the Town Manager has the same
authority to discipline as the departmental supervisors.  In
addition, the Town Manager may place an employee on paid
administrative leave, all without advance notice or hearing. 
After having given written notice of the charges and the potential
consequences and subsequent to a hearing, where the employee may
be represented "by a union official, attorney or other
representative," the Town Manager may "demote, suspend, or
terminate any employee whose work performance or conduct justifies
such action."  All discipline is subject to review through the
grievance procedure set forth in the Policy.

     The Supervisor testified that he "can't issue discipline;
that's not within [his] scope."  The Supervisor's opinion appeared
to be based on his understanding of what constitutes discipline. 
Not only does the Personnel Policy authorize the Supervisor to
issue discipline but, on January 16, 2013, the Supervisor issued a
counseling memo to an employee that was placed in the employee's
personnel file.  The Personnel Policy does not require or even
mention the principle of progressive discipline and there was no
evidence regarding what weight, if any, the Town Manager would
give to counseling or reprimands issued by the Supervisor, or the
absence thereof, when considering the imposition of more serious
discipline.

     Article V, § 5:00 of the Personnel Policy provides that
supervisory personnel serve as the first step of the grievance
procedure.  Typical of standard grievance procedures, the stated
goal in Warren's policy "is to settle the employee's grievance on
as low an administrative level as possible" and "[e]mployees are
encouraged to discuss problems openly and honestly with their
supervisors prior to filing a grievance."  Step One of the
grievance procedures provides that, within 5 days of receipt of   

[end of page 12]

a written grievance, the direct supervisor must hold a meeting
regarding the grievance and must issue a written decision within
five days after that.  The Supervisor testified that he is aware
of the grievance procedure under the Personnel Policy, but he has
never adjusted a grievance.

     Given that depending on the time of year the Supervisor
constitutes 20 or 25% of the entire public works staff of the 
Town of Warren, it is not at all surprising that the principal
functions of the Supervisor consist of performing the same work 
as and working alongside the other employees in the department.   
The record did not support a conclusion that the Supervisor
performed work that is "distinct and dissimilar" within the scope
of the second tine of the § 966(1) test.  Although the Supervisor
has the authority to issue discipline in the form of counselling,
and oral and written reprimands, the record established that he
has issued one counselling memorandum.  The Supervisor has never
adjusted a grievance.  The scope and degree of supervisory
functions exercised by the Public Works Supervisor do not warrant
assigning that position to a separate bargaining unit from that
comprised of the subordinate employees.  

Community of Interest Analysis

     The third major issue presented is whether the Supervisor
shares a clear and identifiable community of interest with the
other regular full-time public works employees.  If so, § 966(2)
of the Act provides that the four employees together would
constitute an appropriate unit for purposes of collective
bargaining.  The board has codified its long-standing community of
interest criteria in Chapter 11, § 22, of its Rules as follows:

     § 22. Criteria for Appropriate Bargaining Units. In
     determining whether a particular position should be
     included in a unit or whether a proposed unit is 

[end of page 13]

     appropriate, the hearing examiner is required to apply
     the specific provisions in the Act governing the
     employees in question. . . .

     3. Community of Interest. In determining whether a
     community of interest among employees exists, the
     hearing examiner shall, at a minimum, consider the
     following factors: (1) similarity in the kind of work
     performed; (2) common supervision and determination of
     labor relations policy; (3) similarity in the scale and
     manner of determining earnings; (4) similarity in
     employment benefits, hours of work and other terms and
     conditions of employment; (5) similarity in the
     qualifications, skills and training of employees; (6)
     frequency of contact or interchange among the employees;
     (7) geographic proximity; (8) history of collective
     bargaining; (9) desires of the affected employees; (10)
     extent of union organization; and (11) the employer's
     organizational structure.

Community of interest factors 1 through 8 and 11 support the
conclusion that the Supervisor and the Highway Worker/Drivers of
the Warren Public Works Department share a clear and identifiable
community of interest and, together, those classifications
constitute an appropriate bargaining unit for purposes of
collective bargaining.  I conclude that the requisite community of
interest exists between the highway supervisor and the highway
worker/driver classifications.

     The Supervisor does the same work as the other public works
employees on a daily basis, including operating equipment, driving
trucks, plowing roads, operating a chainsaw, flagging, and other
similar work on road construction and maintenance projects.  The
Supervisor has additional job functions but, as noted above, they
do not constitute a significant portion of the Supervisor's work
time.

     The Town Manager supervises all of the public works
employees, reviews and signs off on all employee performance
evaluations, and is the only person who can demote, suspend, or 

[end of page 14]

terminate any of the public works employees.  The Supervisor
observes the performance of the public works employees and serves
as their intermediate supervisor, subject to the authority of the
Town Manager. 
 
     The labor relations policy for all of the public works
employees is determined by the Town's personnel policy.  All of
the public works employees are compensated on an hourly basis,
including the Supervisor.  The Supervisor is paid approximately
$20.00 per hour and the other regular employees earn approximately
25% less.  All of the public works employees' employment benefits
and other terms and conditions of employment are determined by the
Town's Personnel Policy.  The Supervisor's regular work week is
the same as that of the other employees. 

     All of the public works employees require a practical
knowledge of road construction materials and methods and the
operation of road construction equipment.  This is the type of
knowledge developed on-the-job or through technical training.   
In addition, the Supervisor is expected to have experience as a
labor foreman on major road construction and maintenance
activities.

     The Supervisor is in constant, daily contact with the other
public works employees.  In most instances, all of the public
works employees work together as a four-person crew.  There was 
no history of collective bargaining for any of the public works
employees.  The Town of Warren has a Town Meeting, Board of
Selectmen, Town Manager form of government.  The public works
department is a separate and distinct operational unit of the Town
whose unique status is reflected by Article 6:01 of the Personnel
Policy.  This separate identity supports the creation of a
separate bargaining unit of public works employees.

[end of page 15]  


     Since there was no evidence of the desires of the affected
employees regarding the composition of the bargaining unit or
regarding the extent of union organization among Town employees in
the record, these factors cannot be said to militate either way
regarding the presence or absence of the requisite level of
community of interest.

                            CONCLUSION

     On the basis of the foregoing facts and discussion and
pursuant to the provisions of 26 M.R.S.A. § 966, the petition for
unit determination filed on August 28, 2013, by Brett Miller,
Secretary-Treasurer and Business Agent of Teamsters Union Local
340, is granted.  The following described unit of employees of the
Town of Warren is held to be appropriate for purposes of
collective bargaining:

     INCLUDED:  Highway Supervisor
                Highway Worker/Driver 

     EXCLUDED:  All other employees of the Town of Warren

A bargaining agent election for this unit will be conducted for
this unit forthwith.

Dated at Augusta, Maine, this 8th day of April, 2014.



                                   /s/___________________________
                                   Marc P. Ayotte
                                   Executive Director


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.

[end of page 16]