Affirming Case No. 14-UD-05.

 

	   AFSCME Council 93 filed this unit determination appeal on 
October 6, 2014, pursuant to 26 M.R.S.A. (968(4) of the Municipal 
Public Employees Labor Relations Law (the "Act") and Chapter 11, 
 §30 of the Rules and Procedures of the Maine Labor Relations Board 
(the "Board").  The unit determination report that is the subject 
of this appeal was issued on September 19, 2014.  In that report, 
the Hearing Examiner determined that the proposed unit was an 
appropriate bargaining unit, but concluded that the Town Clerk 
could not be included as she was excluded from coverage of the Act 
under 26 M.R.S.A.  §962(6)(B). 
 
     On October 16, 2014, AFSCME filed its Memorandum of Appeal, 
in which it challenged the Hearing Examiner?s conclusion that the 
Town Clerk was "appointed to office" as required by the exclusion 
in  §962(6)(B).  AFSCME was represented by Erin L. DeRenzis, Esq. 
and Anna Shapell, Esq., with Attorney Shapell presenting oral 
argument.  Matthew Tarasevich, Esq., represented the Town of 
Readfield, and filed its response to AFSCME's Appeal on October 
27, 2014.  The Board, comprised of Chair Katharine I. Rand, 
Employer Representative Robert W. Bower, Jr., and Employee 

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Representative Amie M. Parker, heard oral argument and deliberated 
this matter on Tuesday, December 2, 2014.  
	  
                           JURISDICTION
           
     AFSCME is an aggrieved party within the meaning of 26
M.R.S.A.  §968(4) and Chapter 11,  §30 of the Rules and Procedures 
of the Board.  The Town of Readfield is a public employer within 
the meaning of  §962(7).  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.  §968(4).

                          FINDINGS OF FACT
  
     Neither party has taken exception to any finding of fact in 
the Unit Determination Report.  Upon review, we adopt those 
findings and deem them incorporated into this decision.
 	 
                            DISCUSSION
   
     The question on appeal is whether the Hearing Examiner erred 
by concluding that the Town Clerk must be excluded from the 
bargaining unit because she was "appointed to office" within the 
meaning of 26 M.R.S.A.  §962(6)(B).  That section excludes any 
employee "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."  AFSCME argues that there is a 
degree of formality implicit in the phrase "appointed to office" 
that was not met by the "perfunctory" re-appointment of the Town 
Clerk in this case.
  
     The standard of review for bargaining unit determinations 
is well established:  The Board will overturn a hearing 
examiner's rulings and determinations if they are "unlawful, 
unreasonable, or lacking in any rational factual basis."  

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Council 74, AFSCME and Teamsters Local 48, No. 84-A-04 at 10 
(Apr. 25, 1984), quoting Teamsters Local 48 and City of     
Portland, 78-A-10 at 6 (Feb. 20, 1979). 
 	 
     We have reviewed the unit determination report in light of
the standard of review and the arguments of the parties.  The 
hearing examiner properly applied the existing case law on the 
statutory exclusion of employees appointed to office for a speci-
fied term and his conclusion was not "unlawful, unreasonable, or 
lacking in any rational factual basis."  It therefore is affirmed.

                               ORDER
  
     On the basis of the foregoing 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 ORDERED:
 
     that the appeal of AFSCME Council 93 filed with respect 
     to the Unit Determination Report in Case No. 14-UD-05 
     is denied and the report is affirmed.
 
Dated at Augusta, Maine, this 18th day of December, 2014.
 
				   MAINE LABOR RELATIONS BOARD						
                                                                                                                       

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