[STATE OF MAINE] [MAINE LABOR RELATIONS BOARD] [Case No. 78-UD-39] [Issued: September 13, 1978] _____________________________ ) TEAMSTERS LOCAL UNION NO. 48,) ) and ) UNIT DETERMINATION REPORT ) CITY OF PORTLAND. ) _____________________________) As the result of the filing of an amended Petition for Appropriate Unit Determination on May 31, 1978 by Richard R. Peluso, International Trustee, Teamsters Local Union No. 48, a unit detennination hearing was conducted commencing at 9:30 a.m. on Wednesday, August 30, 1978 in the Portland Jetport Conference Room, Portland, Maine, as provided in 26 M.R.S.A. 966. Present at the hearing for the petitioner was: Robert L. Maier Assistant to the International Trustee, Teamsters Local Union No. 48 Present for the City of Portland were: James J. Purcell, Esquire Attorney for the City of Portland Michael C. Wing Witness and Assistant City Manager, City of Portland Richard E. Anderson Witness and Director of the Parks and Recreation Department, City of Portland George A. Flaherty Witness and Director of the Public Works Department, City of Portland Also present was the undersigned, Attorney/Examiner for the Maine Labor Rela- tions Board in his capacity as hearing examiner. By its Petition, Teamsters Local Union No. 48 ("Local No. 48") seeks formation of a proposed bargaining unit composed of the Division Heads in the City of Portland's Parks and Recreation, Public Works, and Aviation and Public Buildings Departments. Approximately twelve Division Heads are proposed to be included in the unit, includ- ing the Park Superintendent, City Arborist, Recreation Superintendent, Cemetery Superintendent, and Expo Manager and Federal Projects Coordinator in the Parks and Recreation Department; the City Engineer, Superintendent of Operations - Streets and Sanitation, Superintendent of Operations - Sewer, Traffic Engineer, Buildings Opera- tions Superintendent, and Shop Superintendent in the Public Works Department; and the Superintendent of Parking Garages and Operations Manager of the Jetport in the Aviation and Public Buildings Department. In his opening remarks on behalf of the City of Portland ("City"), Mr. Purcell contended that because the Division Heads are not "public employees" within the meaning of the Municipal Public Employees Labor Relations Act ("Act"), the Division Heads could not be included in a proposed bargaining unit. Mr. Purcell alleged that the Division Heads are excluded from the Act's definition of "public employee" on two separate grounds; first, because the Division Heads are appointed to office as specified in 26 M.R.S.A. 962(6)(D), and second, because the Division Heads are "confidential employees" within the meaning of 26 M.R.S.A. 962(6)(C). Section 962(6)(D) of the Act provides in pertinent part that the term "public employee" means any employee of a public employer except any person who is a division head [-1-] ____________________________________________________________________________________ appointed to office pursuant to ordinance or statute for an unspecified term by the executive head of the public employer, while Section 962(6)(C) provides in part that any employee of a public employer is a "public employee" except any person whose duties as a deputy necessarily imply a confidential relationship to the executive head or department head. Section 966(1) of the Act states in pertinent part that anyone excepted from the definition of public employee under Section 962 may not be included in a bargaining unit. Documentary evidence and testimony by the Directors of the City's Parks and Recreation and Public Works Departments and by the Assistant City Manager was in- troduced during hearing to show that the Division Heads are appointed to office and serve as confidential employees in the formulation and determination of the City's labor relations policies. Because the Director of the Aviation and Public Buildings Department was not available to testify during the hearing, his testi- mony was submitted to the Board and to Local No. 48 by affidavit dated September 1, 1978. Hearing no objection to this testimony from Local No. 48, the testimony by affidavit is admitted into the record. None of the Division Heads appeared to testify during the hearing. Mr. Maier asserted that the reason that the Division Heads did not wish to testify was be- cause they feared that their testimony might lead to reprisal by the employer. Mr. Maier stated that should this Unit Determination Report be appealed to the full Board, Local No. 48 was prepared to subpoena some of the Division Heads to testify at the hearing of the appeal, thereby protecting with the Board's summons those Division Heads who testify. The hearing examiner then informed the parties that this Report would be based solely on the record that was developed before the hearing examiner. After carefully considering the record, the hearing exam- iner is of the opinion, for the reasons discussed below, that the Division Heads are exempted from the Act's definition of "public employee" by both Section 962 (6)(D) and (C). The Division Heads accordingly cannot be included in a proposed bargaining unit. Testimony during the hearing and job descriptions for the various Division Head positions submitted by the City establish that the Division Heads are re- sponsible for the day-to-day administration of one or more divisions within their respective departments. In general, the duties performed by the Division Heads include planning, developing and executing the activities of their respective divisions; scheduling, supervising and evaluating the employees employed in the divisions; and formulating and administering division policies and practices. The number of full-time employees employed in the various divisions range from 5 to 110 persons. Most of these employees are members of bargaining units, and there is a lengthy history of collective bargaining between these bargaining units and the City. The Directors of the Departments testified that the Division Heads exercise considerable independent judgment regarding the day-to-day operations of their divisions. According to Section 1(c) of Article VI of an attested copy of the Charter of the City of Portland, admitted into the record as City's Exhibit No. 1, "[a]ll . . . employees shall be appointed by the city manager upon recommendation of the heads of their department." An explanatory note at the end of the City Charter -2- ____________________________________________________________________________________ states that home rule powers were granted to the City by P.L. 1970, C.563, 30 M.R.S.A. 1911, et seq. The note explains that "[p]rior to 1970 and home rule the charter and its various amendments were enacted by the Maine Legislature." Article VI of the City Charter has not been amended since 1970. Consequently, it appears that the City Manager's power to appoint Division Heads to office is exer- cised pursuant to an ordinance or statute enacted by the Legislature. In addition, Section 4 of Article VI of the City Charter provides that all appointive officers hold office during the pleasure of the appointing power, while Section 5 of Article VI makes the City Manager the administrative head of the City. In light of the evidence contained in Article VI of City's Exhibit No. 1, the hearing examiner finds that the Division Heads are appointed to office pursuant to ordinance or statute for an unspecified term by the executive head of the employer, as provided in Section 962(6)(D) of the Act. The Directors of the Departments testified that during their tenures as Directors, the City Manager has appointed every individual recommended by the Directors to the Division Head positions. The Directors recognized, however, that the City Manager is empowered to reject any of their recommendations regarding the appointment of a Division Head. Additionally, the fact that the City Manager appoints all City employees to their positions does not diminish the fact that the Division Heads are appointed to office within the meaning of Section 962(6)(D). Having found that the Division Heads are exempted from the definition of "public employee," the hearing examiner must order that the Division Heads cannot be included in a bargaining unit. The hearing examiner also finds that the Division Heads are exempted from the Act's definition of "public employee" by the "confidential employee" exemp- tion contained in Section 962(6)(C). The Assistant City Manager testified that in recent negotiations with bargaining agents for City employees, the City's negotiating team consisted of the Assistant City Manager, a private attorney who serves as spokesperson for the team, and the City's Assistant Personnel Director. The Assistant City Manager testified that the City's bargaining team discusses with some of the Division Heads the existing collective bargaining agreements and any proposals concerning changes in the existing agreements. Some of the Divi- sion Heads are consulted regarding the effects which union proposals might have on division operations. Recently the City's bargaining team has relied upon the judgment of some of the Division Heads regarding the appropriateness of employee reclassification requests by some bargaining agents. On occasion the Division Heads will during a negotiating session participate directly in caucuses with the City's bargaining team. The Directors of the various departments testified that the Division Heads are regularly asked for their suggestions and recommendations concerning changes in existing collective bargaining agreements. Based upon the testimony at the hearing, the hearing examiner finds that the Division Heads are involved in the formulation, determination and effectua- tion of the City's labor relations policies. One of the purposes of Section 962 (6)(C) is to provide public employers with personnel who are exempted from the definition of "public employee" to assist executive and department heads in nego- tiations, a function which is performed by the Division Heads. Employees who are so involved in labor relations matters on behalf of the employer are exempted from the Act's definition of "public employee" by Section 962(6)(C), see Unit -3- ____________________________________________________________________________________ Determination Report [No. 78-UD-04], Employees of the Kittery Police Department and Town of Kittery (1977) ; Unit Determination Report [No. 78-UD-35] , Teamsters Local Union No. 48 and City of Biddeford (1978), and cannot be included in a bargaining unit. Because the Division Heads in the City of Portland's Parks and Recreation, Public Works, and Aviation and Public Buildings Departments are exempted from the Act's definition of "public employee" by both Section 962(6)(D) and Section 962(6)(C) of the Act, the hearing examiner finds that the Division Heads are precluded from membership in a bargaining unit by Section 966(1) of the Act. SO ORDERED. Dated at Augusta, Maine this 13th day of September, 1978. MAINE LABOR RELATIONS BOARD /s/______________________________ Wayne W. Whitney, Jr. Hearing Examiner -4- ____________________________________________________________________________________