Teamsters Local 48 and Town of Yarmouth, No. 80-UD-18, aff'd 80-A-04

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                              HEARING EXAMINER
                                                   [Case No. 80-UD-18]
                                                   [Issued:  April 4, 1980]

            and              )               UNIT DETERMINATION REPORT
TOWN OF YARMOUTH             )
     Teamsters Local Union No. 48 ("Local 48") filed this petition for unit determ-
ination on December 21, 1980.  A hearing was held after due notice on April 2,
1980, in order to comply with Section 966 of the Municipal Public Employees Labor
Relations Act ("the Act"), 26 M.R.S.A.  966.
     Present at the hearing for Local 48 was:

          Walter J. Stilphen                       Secretary-Treasurer
                                                   Local 48
     Present for the Town of Yarmouth were:

          F. Paul Frinsko, Esq.                    Attorney
          Osmond C. Bonsey                         Witness and
                                                   Town Manager
          Harold B. Hutchinson                     Witness and
                                                   Public Works Administrator/
                                                   Town Engineer
     Local 48 seeks a determination that a unit of employees consisting of Equip-
ment Operator I, Equipment Operator II, Mechanic, Parksman, Landfill Operator, and
Treatment Plant Operator, is an appropriate unit for collective bargaining.  The
Town argues that two units of employees would be appropriate not one, i.e., that
the Treatment Plant Operators (2) should be in one unit and the remaining employees (9)
in another, on the grounds that this follows the organizational structure of the
Public Works Department which is divided into two divisions, Highway and Sewerage.
Both parties presented evidence bearing on traditional community of interest
standards applied in making the determination.

                                  FINDINGS OF FACT
     There was no serious conflict in the representations or testimony as to pure
questions of fact.  The facts as I find them are as follows:
     1.  The Town Manager is the chief executive officer.  The Public
         Works Administrator/Town Engineer is under the Town Manager's
         authority and is responsible for the Public Works Department
         which has two divisions, Highway and Sewer.  Each division is
         headed up by a superintendent.  Under the Highway Superinten-
         dent there are Equipment Operator ("E.O.") I (4), E.O. II (1),
         Mechanic (1), Parksman (1), and Landfill Operator ("L.O.")
         (2) - nine employees in all.  Under the Sewer Superintendent
         there is one job classification, Treatment Plant Operator
         ("T.P.O.") (2).  The two superintendents work with the employees
         under them and are working foremen.  Public Works Administrator
         Hutchinson, as the department head, makes the key labor rela-
         tions recommendations for all these employees by proposing
         action, such as disciplinary measures, to the Town Manager,

         who has the final authority in such matters.  The personnel
         files for all these employees are kept in the Town Office.
     2.  Other Town employees are in collective bargaining units, spe-
         cifically, a unit for dispatchers and a unit for police offi-
     3.  The Sewer Division is responsible for the operation, main-
         tenance, and control of the wastewater treatment plant and
         the sewer system and pumping stations.  The Highway Division
         is responsible for the maintenance and repair of the Town
         roads, vehicles, parks, and sanitary landfill.
     4.  The two T.P.O.'s work at the treatment plant and occasion-
         ally at any of the eleven pumping stations in the system.
         The treatment plant is located separately from the Town
         garage where the Highway Division employees report.  It is
         evident from the job descriptions that the Landfill Operators
         spend their time almost exclusively at a third site, the Town
         Sanitary Landfill.
     5.  The T.P.O.'s run the wastewater plant, maintain pumps, take
         samples, perform laboratory tests, perform general repair
         work at the plant and pumping stations, inspect, clean, and
         lubricate equipment, take instrument and gauge readings,
         maintain lawns and grounds and perform general cleaning and
         housekeeping.  They also perform minor repair work on Sewer
         Division vehicles and do the snowplowing necessary for the
         treatment plant.
     6.  The E.O.'s operate various types of light and heavy road
         vehicles, including snowplows, perform minor vehicle and
         equipment maintenance, maintain sidewalks, drains, sewer
         lines and culverts, and clean and repair streets and signs.
         The Mechanic performs difficult and complex mechanical work
         on all types of vehicles and equipment; this includes minor
         and major repair of all Town vehicles except for the minor
         repair of sewer division vehicles.  The Parksman landscapes
         and maintains athletic fields, parks, guardrails, bridges,
         and other Town outdoor facilities, and performs carpentry
         tasks.  The Landfill Operator operates light, tracked dozers
         and loaders and supervises the operation of the Town Landfill.
         All of the Highway Division employees are involved with snow-
         plowing of some sort from time to time with the exception of
         the L.O.'s.
     7.  There is no interchange of employees between the two divisions
         although there is a Town policy of giving preference in job
         bidding to Town employees.  There are some contacts between
         the T.P.O.'s and the others.  When sewer division vehicles
         require gasolene or major repair work, they are brought to
         the Town garage and serviced there.  Once or twice a year
         T.P.O.'s will ride as wingman on a snowplow when personnel
         shortages arise.  The E.O.'s haul sludge away from the treat-
         ment plant on a regular basis.  The Parksman occasionally per-
         forms carpentry work at the treatment plant.  Highway Division
         employees sometimes assist when extra hands are needed to move
         or handle heavy objects at the Treatment plant.
     8.  The Highway Division employees have one hour for lunch and us-
         ually go home while the T.P.O.'s have one half hour and usually
         stay at the Treatment plant.  There is also no promotion track
         involving the T.P.O.'s and any Highway Division position.  Also,
         although the Town has a policy of giving preference to Town em-
         ployees on job bids, no Highway Division employee has trans-
         ferred to a T.P.O. opening or vice versa.
     9.  Highway Division employees work 40 hours a week from 7:00 a.m.
         to 4:00 p.m., Monday to Friday, year-round.  The T.P.O.'s also
         work a 40 hour week, from 7:30 p.m. to 4:00 p.m., Monday to
         Friday, most of the year, although in the summer they switch to


         a four day week, ten hours per day.  In addition, the
         T.P.O.'s are regularly scheduled for overtime for a 2-l/2
         hour period each weekend.  There is a time clock used at
         the Town garage while the T.P.O.'s do not punch a clock.
    10.  The annual wages based on 40 hours are as follows:

                      E.O. I         - $ 9,542
                      E.O. II           10,857
                      Mechanic          12,896
                      Parksman           9,984
                      L.O.              10,920
                      T.P.O.             9,402
         The T.P.O.'s actual gross annual income is approximately
         10% higher due to regularly scheduled overtime.  There
         was no evidence of other employees receiving regularly
         scheduled overtime opportunities.
    11.  The education requirement for E.O. I, E.O. II, and L.O.
         is the completion of eighth grade.  The Mechanic must
         have completed high school.  The L.O. and the T.P.O. must
         have completed either high school or vocational school.

    12.  Special licenses required are as follows:

                      L.O.     - Class III motor vehicle
                      Parksman - Class II    "      "
                      E.O. I     Class II    "      "
                      E.O. II    Class  I    "      "   within a time required
                      T.P.O.     Class II    "      "   plus
                                 Class III wastewater
    13.  The affected employees desire to be together in one unit.
    14.  All the affected employees wear the same uniform which the
         Town provides.  The uniforms are indistinctive except for
         name patches.
     The parties agreed that the only issue was a decision between the two units
discussed, the departmental unit sought by the petitioner or the two division
units advocated by the Town.
     The decision must be based on the modest guidance provided by Section 966(2)
of the Act, which directs that the hearing examiner
          ". . . shall decide in each case whether, in order to insure to
           employees the fullest freedom in exercising the rights guaranteed
           by this [Act] and in order to insure a clear and identifiable com-
           munity of interest among employees concerned, the unit appropriate
           for purposes of collective bargaining shall be the public employer
           unit or any subdivision thereof."
26 M.R.S.A.  966(2).
     The basis for the decision is, however, not whether one overall unit would
be more appropriate than the two suggested by the Town.  Rather, the issue is
simply whether the unit which the petitioner seeks is an appropriate one.  See,
Maine Teachers Association and Council No. 74, AFSCME, Unit Determination Report
(Oct. 20, 1978)[78-UD-40]. Of course, a reason why a proposed unit might be inappropriate
might at the same time support a conclusion that another unit grouping would be


     Factors that have evolved in making the judgment as to "appropriateness"
are set forth in Maine Teachers Association, above.  In applying those factors
I conclude that a number of them militate in favor of the proposed unit:  simi-
larity in wage and benefits; similarity in skills and type of work; the fact
that they are all in the same department and are subject to the common supervi-
sion and policies of the department head; the fact that they wear a common uni-
form; the fact that the employees desire the proposed unit; the extent of Local
48's organization; and the overall smallness of the unit.  Although there is no
interchange of employees and there is geographical separateness, there is some
contact in the course of job performance between the T.P.O.'s and the other
employees.  Thus, while this factor militates against appropriateness of the
overall unit, it is not a major negative factor.
     In the balance, the factors in favor of the unit proposed easily surpass a
minimum degree of community of interest and I therefore conclude that the unit
as proposed by Local 48 is an appropriate unit for collective bargaining.

     To explicate somewhat, I conclude that there is a substantial degree of
similarity of working conditions among the employees and they would likely have
similar priorities in their collective demands.  Their wages are all within the
same range and they all currently enjoy the same fringe benefits.  The type of
work is similar too in that they are all involved in skilled or semi-skilled
physical labor involving machinery and major pieces of equipment.  Moreover,
since the two superintendents work with them as working supervisors, they pri-
marily are commonly supervised by one department head, Public Works Administrator
Hutchinson, the primary mouthpiece of management policies.
     Another key factor is the immediate community of identity that is created by
the fact that the employees are distinct from all other town employees but simi-
lar to each other in that they all wear a uniform which is issued by the Town.
Each uniform is distinguished only by a name plate.
     Other items which influence the decision are the desires of the employees
themselves and the extent of the union organization.  It is significant that Local
48 proposes to represent the group and that the employees themselves prefer to be
together.  Thus the likelihood of internal conflicts of interests is lessened by
the similar attitudes and community reflected by these factors.
     Finally, and least significantly, I believe that there is a greater tendency
towards community in the very small grouping of only eleven employees than there
would be if all things were the same but there were many more employees.  The
impact of one or two voices is not totally diluted in such a small group.
     In conclusion, it is my judgment that the unit proposed by Local 48 at the
hearing is an appropriate unit for collective bargaining.  Thus, the unit for the
purpose of conducting a bargaining agent election shall be:  Equipment Operator I,
Equipment Operator II, Mechanic, Parksman, Landfill Operator, and Treatment Plant
Dated at Augusta, Maine, this 4th day of April 1980.
                                         MAINE LABOR RELATIONS BOARD

                                         Michael C. Ryan
                                         Hearing Examiner