Truck Drivers Union Local #340 and City of Brewer, No. 77-UD-16,
affirmed, 77-A-06.

[STATE OF MAINE]                                [MAINE LABOR RELATIONS BOARD]         
                                                [Case No. 77-UD-16]
                                                [Issued:  June 10, 1977]

TRUCK DRIVERS UNION LOCAL #340 )             
  and                          )              UNIT DETERMINATION REPORT
CITY OF BREWER                 )
     As the result of the filing of a Petition for Appropriate Unit Determination
by Adelard LeCompte, Jr., Secretary-Treasurer, Truck Drivers Union Local #340, a
unit determination hearing was held on Thursday, April 7, 1977, at 1:30 p.m. (EST)
in the City Council Chambers, City Hall, 80 North Main Street, Brewer, Maine.
     Present thereat for the petitioner was:

          Richard Peluso               International Brotherhood of Teamsters
     Present thereat for the respondent were:

          Malcolm E. Morrell, Jr.      Attorney for the City of Brewer
          Gerald Leavitt               Public Works Director
          Reynold Perry                Assistant City Manager
     Also present thereat was the undersigned Attorney/Examiner for the Maine Labor
Relations Board in his capacity as hearing examiner.
     After initial discussions by the parties, Mr. Morrell, on behalf of the City
of Brewer, challenged the showing of interest required by Rule 1.05 of the Rules
and Procedures of the Maine Labor Relations Board with respect to the pending peti-
tion.  Mr. Morrell noted that the petition was filed on behalf of the Local #340
and the representative at the hearing was present on behalf of Local #48.  Mr. Morrell
expressed concern that the employees were signing a showing of interest for one
Local when another Local would eventually represent them.  As a result, Mr. Morrell
requested to see the membership cards filed with the Maine Labor Relations Board
as the showing of interest for the petition.  The request was denied.  Both parties
expressed concern over the importance of the issue involved and were afforded an
opportunity to file documentation and briefs on the above issue.
     The hearing examiner then proceeded with an examination of the job categories
in the Brewer Public Works Department alleged to comprise an appropriate bargaining
unit.  The parties agreed that the following positions were supervisory positions
and were not included in the petition for an appropriate bargaining unit:

                      Director of Public Works
                      Assistant Director of Public Works.
     The parties also agreed that the following positions shared a community of
interest and should properly be included in a bargaining unit:

                      Crew Leaders and Heavy Equipment Operators  (3)
                      Heavy Equipment Operators                   (2)
                      Mechanics                                   (1)
                      Laborers                                    (6)
                      Light Equipment Operators                   (8)
                      Auto Mechanics                              (0)
                      Carpenters                                  (1)
                      Storekeeper                                 (1)
     (The number after the job title indicates the present number of employees
      employed in that job category.)

All other employees of the City of Brewer, with the exception of the Shop Superin-
tendent (called the Foreman by the petitioner) were excluded.  The petitioner
alleged that the Shop Superintendent shared a community of interest with the
other employees and should be included in the bargaining unit.  The City did not
challenge the community of interest of the Shop Superintendent, but alleged he
was a supervisor as defined in 26 M.R.S.A.  966 and should consequently be ex-
cluded from the proposed bargaining unit.  The hearing examiner proceeded to
take testimony concerning the supervisory nature of the position of Shop Superin-
     The testimony indicated that three mechanics worked under the Shop Superin-
tendent.  The Shop Superintendent directs the work of others and reports directly to
the Director of Public Works.  He can discipline employees and effectively recom-
mend discharge and he can grant time off without the approval of the Director of
Public Works.  Approximately 60% of his time is spent overseeing the work of other
employees, while 40% of his time is spent performing the actual work.  A Crew
Leader and Heavy Equipment Operator spends only 10% of his time overseeing the work of
other employees and 90% of his time performing the actual work.  It is the opinion
of the hearing examiner that the principal function of the Shop Superintendent is
characterized by performing such management control duties as scheduling, assigning,
overseeing and reviewing the work of subordinate employees and should be and here-
by is excluded from the bargaining unit of the other employees in the Public Works
Department.  SO ORDERED.  Nothing in this opinion is intended to prejudice the
rights of any employee to appropriately petition the Maine Labor Relations Board for
a bargaining unit of supervisors.
     As a result of the dispute at the hearing concerning the adequacy of the
showing of interest and the confidentiality of the membership cards used for a
showing of interest under Rule 1.05, the parties submitted extensive documents and
briefs from April 22, 1977 through June 3, 1977.
     The first issue is the adequacy of the showing of interest for the petition
for appropriate unit determination.  It is significant that the showing in question
is not that for a representation election but for a unit determination.  The practice
of the Maine Labor Relations Board for the determination of a bargaining unit and
the election of a bargaining agent is to conduct the processes separately.  Conse-
quently, in this case, 26 M.R.S.A.  967, is not relevant.  The showing of interest
for a unit determination is contained in Rule 1.05 of the Rules and Procedures of
the Maine Labor Relations Board which states in part "petitions filed by an employee
or employee organization shall contain written proof that said organization repre-
sents 30% of the regular employees in the proposed unit."  The proof may be in the
form of "membership cards, a list of employees authorizing current payroll deduc-
tions for membership dues, or authorization cards or petitions containing the printed
name of and signature of employees.  Any form of proof filed with the Board pursuant


to this rule shall contain, as a minimum, (i) the signature of the employee,
(ii) the typewritten or printed name of the employee, and (iii) the date
each respective signature thereon was obtained."  Rule 1.05(B).  The determina-
tion that the showing of interest was adequate was made administratively and was
based on the fact that the showing of interest was evidenced by membership cards
containing the information required by Rule 1.05(B) for the International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Helpers Union of America.  Mem-
bership in the parent organization was deemed adequate as a showing for a char-
tered local.  It is therefore the opinion of the hearing examiner that the Petition
for Appropriate Determination filed by Adelard LeCompte, Jr. complied with the
Rules and Procedures of the Maine Labor Relations Board.  The presence of a
representative at the hearing assigned to a Local other than the petitioner (but
within the same Union or employee organization) does not violate the Rules and
Procedures of the Board and is not a ground to set aside the petition.
    The second issue is that of the confidentiality of membership cards filed
with the Maine Labor Relations Board pursuant to Rule 1.05.  Rule 1.05 states
that the 3O% required proof of interest "need be filed with the Board only"
[Rule 1.05(B)] and that "the determination whether such proof is satisfactory
shall be made administratively and shall only be subject to review by the Board."
[Rule 1.O5(C)].  The purpose of such a showing of interest is to insure that the
resources of a governmental agency are not wasted and that there is no unreason-
able imposition of a burden on another or opposite party to a petition regarding
the bargaining unit.  The purposes of the provisions of Rule 1.05 quoted above are
specifically intended to insure the confidentiality of the names and cards filed
with the Board.  Employees have often been discriminated against because of their
union activities.  To protect the rights of public employees in Maine to join
labor organizations, the Municipal Public Employee Labor Relations Act was enacted
which states, among other provisions, that
       "No one shall directly or indirectly interfere with, intimidate,
        restrain, coerce or discriminate against public employees or a
        group of public employees in the free exercise of their rights,
        hereby given, voluntarily to join, form and participate in the
        activities of organizations of their own choosing for the pur-
        poses of representation and collective bargaining, or in the
        free exercise of any other right under this chapter."  26 M.R.S.A.
     The Maine Labor Relations Board was given power to enforce violation of
Section 963 by the powers granted in Section 968.
     In promulgating its Rules, the Board saw a need for the proof of interest
yet wanted to insure employees the fullest freedom in exercising rights granted by
the Municipal Public Employees Labor Relations Act and consequently provided in
Rule 1.05 that the showing of interest be confidential.


     The City of Brewer has argued that the Maine Freedom of Information Act
(1 M.R.S.A.  402(3)) requires that the Board make public the showing of in-
terest membership cards.  The arguments of the City are very persuasive; however,
it is appropriate that the membership cards not be disclosed under exceptions
A, B or D of Section (3) of the Freedom of Information Act.  As an agent of the
Maine Labor Relations Board, the hearing examiner must rely on the Rules and
Procedures of the Board and, consequently, the decision of confidentiality is
based on the Rules and Procedures of the Board.
     The request of the City of Brewer to examine the membership cards should be
and hereby is DENIED.
Dated at Augusta, Maine the 10th day of June, 1977.
                                             Richard L. Hornbeck, Attorney/Examiner
                                             Maine Labor Relations Board