Portland Teachers Assn. and Portland Public Library, No. 81-UD-04:
Decision of Nov. 25, 1980 on jurisdiction, affirmed by 81-A-02 and by
CV-81-884.  Decision on unit composition 81-UD-04 issued Sept. 22, 1981.

STATE OF MAINE                                     MAINE LABOR RELATIONS BOARD
                                                   (Hearing Examiner Decision)
                                                   Issued:  November 25, 1980
                                                   [Case No. 81-UD-04]
PORTLAND TEACHERS/              )
                   Petitioner,  )
                                )             UNIT DETERMINATION REPORT
        and                     )                  (JURISDICTION)
                   Respondent.  )
     This is a motion by the Board of Trustees of the Portland Public Library
(Library or Trustees) for a preliminary determination of jurisdiction to conduct
an appropriate unit determination pursuant to a petition for such filed by the
Portland Teachers/Maine Teachers Association (Union) pursuant to Section 966(1)
of the Municipal Public Employees Labor Relations Law (Act), 26 M.R.S.A.  966(1)
(Supp. 1980).  At issue is whether the library is a "public employer" within the
meaning of 26 M.R.S.A.  962(7).  Pending the resolution of this threshold ques-
tion, the parties agreed to the holding in abeyance of proceedings on the merits
of the underlying appropriate unit issues.
     The undersigned designee of the Executive Director of the Maine Labor Rela-
tions Board (Board) held a hearing on November 12, 1980, in the Portland Public
Library, Portland, Maine.  The Library was represented by F. Paul Frinsko, Esq.;
the Union by John Alfano, Maine Teachers Association (MTA) UniServ Director, Roger
Kelley, MTA UniServ Director, and Tom Bohan, Esq.  Also present were the follow-
ing witnesses:

                     Edward Chenevert        Library Director
                     Barbara D. Smith        Assistant Library Director
                     Anna Piper              Financial Officer
                     Bonnie Taylor           Librarian III
                     Jacqueline Eisner       Librarian I
                     Janice Littlefield      Sr. Office Asst.
     Each side had the opportunity to present documentary evidence, to examine
and cross-examine witnesses, and to offer oral argument.  The record includes
stipulations, sworn testimony, and 21 exhibits.[fn]1
                                 FINDINGS OF FACT
     Upon a preponderance of the evidence obtained, I find the following:
1.  Background.
     (1)  The Portland Public Library was incorporated by an act of the State
Legislature in 1867 (Chapter 174) "for the purpose of establishing and maintain-
1.  One exhibit, Association #12, was admitted over an objection on the grounds
    of relevance.

ing a library and an institute of natural history, science and art, in the city of
Portland, with all the powers and privileges, and subject to all the duties and
liabilities of similar corporations in this state."  Section 3 of the Act provided:
          SECT. 3. The city of Portland are hereby authorized to appro-
     priate and pay, annually, toward the expenses of establishing and
     maintaining said institution, a sum not exceeding one dollar for
     each of its ratable polls, in the year next precedinq that in which
     said appropriation is made; and may also furnish rooms for its ac-
     commodation.  And when, and so long as said city shall make such
     annual appropriations, said corporation shall allow, under proper
     regulations, the inhabitants of said city to have free access to its
     library, for the purpose of using and enjoying the same on the
     premises.  The property of said corporation shall be exempt from
     (2)  In 1876, the Legislature passed an act (Chapter 198) which, among other
things, authorized the City at any time to take the property and rights of the
corporation to be used and maintained as a free public library.  In 1889, however,
this option was terminated by an act (Chapter 287 Section 1) which declared among
other things that:
          "All the powers, immunities and franchises and affairs of the
     [Library] shall perpetually hereafter be exercised, managed and
     governed by a permanent board to be styled The Trustees of the
     Portland Public Library; the corporate property shall be used and
     improved for a free public library for the inhabitants of the city
     of Portland, and shall be forever exempt from liability to be
     taken by the city from the management, direction and control of
     said board of trustees."
A subsequent act of the Legislature in 1965 (Chapter 61) removed previous restric-
tions on the amount of property the corporation could hold.
     (3)  In 1943, the Library received tax exempt status from the Internal Revenue
Service under Section 501(c)(3) of the Internal Revenue Code.  This status has been
retained through the present.
2. Current By-Laws and Personnel Policy
     (4)  The current Library by-laws, last revised in 1976, provide for a self-
perpetuating Board of Trustees, with a maximum of 20 members.  One of the member
is appointed annually by the Portland City Council from its membership.  In prac-
tice, the Mayor has been appointed as the Council's Trustee.  Another of the mem-
bers, purely as a matter of custom, has been the Superintendent of Schools.  The
by-laws also provide that the Librarian (also known as the Director) shall select
and direct members of the Library staff.
     (5)  One of the Trustees' standing committees is the Committee on Finance and
Personnel.  The by-laws direct that this committee work with the Librarian on the
budget and appear at City budget hearings held before the City Manager and before
the City Council.  This Finance Committee, which is entrusted with the care and
control of the finances of the Library, is required (a) to deposit securities in a
bank located in Portland and (b) to consist of at least three members who are
residents of the City of Portland.
     (6)  The Library also has a comprehensive personnel policy, last revised in
December 1977.  Significant items included are:  (a) first preference in hiring
to qualified residents of the City; (b) ". . . the Library policy to utilize a

Library pay plan which corresponds as nearly as possible with the current City
of Portland non-union employee pay plan."  (c) eligibility for Workers Compen-
sation; and (d) permission for employees to be represented in a grievance pro-
cedure by a member of the "Staff Association."  While it is unclear to what exact
extent the fringe benefits correspond to those of non-union City employees, the
Library has at least an unwritten policy of maintaining parity with City employees
in fringe benefits.
3.  The City's involvement in Library operations.
    A.  Financial involvement
    (7) The Library owns little that is not traceable at least in part to City of
Portland sources except for its endowment fund.  Its collection of books and arti-
facts has been purchased over the years in part with City money, and its equipment
and furniture has been purchased, specifically for the new library building, in
part with City, State, and federal money.  That part which has not been paid for
with public money has either been directly donated or been purchased with donated
money.  The Library owns none of the buildings it uses.  The Library's endowment
fund, however, has grown to a total of $1.1 million as of the end of 1979.  This
will produce about $0.1 million in income for 1980.
    (8)  The Library is, nonetheless, totally dependent upon the City for annual
operating funds.  The endowment fund income is miniscule in comparison to the
total value of the City's financial support, both direct and indirect, of the
Library.  By the end of 1980, for example, the City will have provided for the
year about $0.85 million in direct cash payments[fn]2 and will have provided rent
free use of the City-owned, new main library building which costs about $6.2 mil-
lion when finished.[fn]3  (The financial report for 1979 listed the value of the use
of this building as unestimable, but substantial.)[fn]4  Additional indirect financial
support is substantial and by itself dwarfs the Library's endowment fund income.
The indirect support is itemized below:
    (a)  In addition to the main library building the library has five branches,
four located in school buildings and one located in the City's Public Safety Build-
ing on Peaks Island.  The City also does not charge rent for the use of the Public
Safety building.  Although the Library pays a share of the utilities used at the
Peaks Island facility, it does not pay for heating the main library building.
2.  The State provided about $0.1 million dollars for 1980 operations.
3.  The U. S. government provided about $3.4 million of this, while the
    City provided the land and over $2.0 million in cash.

4.  The City also owned the building previously used as the main library
    building. It also charged no rent for the use of that building.

    (b)  The Portland Public Library is a separate participating local district[fn]5
of the Maine State Retirement System (M.S.R.S.).  The Trustees accepted the pro-
visions of the then State Retirement Act in 1950 in a resolution passed by the
Trustees which directly implied that the Library employees are employees of the
City of Portland.  The resolution, as passed, stated:
            Whereas, the City Government of the City of Portland being
          wholly in accord with the admission of the Portland Public
          Library employees to the retirement system on the same basis
          as other employees of the City of Portland,
            Now, therefore, Be It Resolved, that the Portland Public
          Library with respect to all its employees join said retirement
          system on the same basis as the other employees of the Portland
          City Government, the same to be effective May 1, 1950.
          (Emphasis added.)
The City assumed the financial obligations of providing this benefit and has always
paid directly into the M.S.R.S. on behalf of library employees, presently 16.32%
of earnings.[fn]6
    (c)  The City maintains insurance on the main library buildings (and, presum-
ably, the Public Safety Building).  It also insures the Library Bookmobile and all
the contents of these buildings.
    (d)  The City carries liability insurance on the Library employees.
    (e)  The City makes the required unemployment insurance payments for the
Library employees.
    (f)  The City provides supplies, e.g., stationery, to the Library at cost
(about one half the retail price).
    (g)  The City provides Workers Compensation coverage for Library employees.
Two employees have recently been paid on claims submitted to the City.  Because
the Library was unaware of the fact that the City would pay on such claims, it
has also paid for Workers Compensation insurance.
    (h)  The City provides sidewalk snow removal to the Library.
    (i)  The City provides printing services to the Library although it is
unclear whether this is free or not.
    (j)  The City has in the past provided some building and equipment main-
tenance services to the Library.  It is unclear to what extent this will continue.
5.  "Local district" for M.S.R.S. purposes is defined in 5 M.R.S.A.  1001
    (11-A) (1979) as:
        ". . . any county, municipality, quasi-municipal corporation,
         incorporated instrumentality of the State or of one or more
         of its political subdivisions, or any incorporated associa-
         tion of employees of the State or of such local districts,
         or incorporated association of such local districts, or any
         entity eligible to become a participating local district, or
         presently participating in the system, under this section as
         in effect immediately prior to January 1, 1976."
6.  In both 1970 and 1974 the Trustees resolved to adopt changes in M.S.R.S.
    benefits "in order to parallel the action taken by the City Council."
    The pension benefits for employees of the City and of the Library have
    remained the same.


    (k)  The City provides the use of its computerized payroll system to the
Library, and actually draws the payroll checks on City funds (which are then
subtracted from the monthly payments to the Library according to the City budget).
     B.  Managerial Involvement.
     (9)  The Director and the Trustees manage the daily affairs of the library
and direct the staff.  There is no right of control by the City Manager or the
City Council.  Influence over major operational decisions is exercised nonethe-
less through the budgetary process (discussed below) and through other contacts
with the City.  Some examples of this influence are evident.  First, the Director
is "invited" by the City Manager to all meetings of City department heads.  In
this manner the City Manager and the Director can be confident that the Director
is kept abreast of the City's financial and other problems.  Second, the City was
explicitly offered the choice to have the Library open on Mondays. The alterna-
tives were explicated in the Library's 1981 Budget Request.  Introduction. as
          "Although we have received numerous and persistent requests
           from the public to at least restore Monday hours at the
           Main Library, and increase the hours of service at the
           branch libraries, costs for such increase are not included
           in this budget request. [The estimated additional costs for
           re-opening the Main Library for 9 hours of service on Mon-
           days is $19,934 for six months.)"
It is altogether clear that the City could open the Library on Mondays by provid-
ing the extra funds.  Indeed this or any other item the Council might desire could
be accomplished through the budget process even if not specifically mentioned in
the budget request.  Third, in the same budget request, also in the Introduction,
the Library states:
          "2.  Page 8 - Salaries, Permanent, New Positions
               The Library is requesting four additional
               clerical positions for the main library, two
               of which are 20 hour positions:
               1 - switchboard operator to replace a college
                   work study position
               1 - office assistant in Technical Services to
                   alleviate a long existing staff shortage
               1 - (20 hrs) office assistant in Circulation to
                   help handle the increased volume of activity
               1 - (20 hrs.) office assistant in Periodicals to
                   handle shelf maintenance because of the
                   dramatic rise in periodicals use now that
                   they are accessible and visable in open stacks."

Again, the increase in staff decision is laid in the hands of the City for deci-
sion.  Fourth, during the most recent budgetary process, the Director was asked to
indicate how he would revise his budget to reflect a cut from a total request of
$.6 million to $.5 million.
     (10)  The last example is the decision where the new library building would
be located.  In 1974, the Trustees voted to support a resolution to be proposed
for passage by the City Council which stated:  "That it is the sense of the Council
that one of the paramount needs of the City is a new Public Library Building, that
a suitable new [building] should be constructed as soon as possible, with due


consideration to the other needs of the City . . . ."  The Trustees' suggestion
that a building committee be formed, chaired by a City Council member, with repre-
sentatives appointed by the Council, was accepted.  The City Council eventually
did pick the actual building site, pay for the design of the structure, and approve
the plan.
     C. Personal involvement.
     (11)  Apart from the involvement in personnel matters which were listed as items
of indirect financial support to the Library, indicated in subheading 3., A., above,
the City is involved in the following personnel matters as well:
     (a)  In the "Report of the Librarian for the Year 1966," to the Trustees, the
Librarian stated:  "In June the City Council set up a new salary scale for library
employees, and it was hoped that this new salary scale would reverse the trend
[high staff turnover] and that better pay . . . ."
     (b)  Within the last few years, the City contracted for an expert study of its
job classification system.  The Library Director asked that the Library employees
be included in the study.  The study proposed a new City "Non-union and Administra-
tive Pay Plan," which both the City and the Library adopted.  Significantly, the
minutes of the June 20, 1979, Trustees meeting show the following statement:
          "[T]he City of Portland had recently adopted a new pay scale for
           its non-union and administrative employees and Mr. Leddy [Secretary
           of the Board of Trustees reported that the City~ Manager as well as
           the City Council were in favor of the Portland Public Library adopt-
           ing the same pay plan for the Library."
As indicated, the plan was adopted.
     (c)  The June 20, 1979, minutes also indicate that the Trustees wanted to in-
crease the Library Director's salary as recommended by a Trustee subcommittee:
          "The Subcommittee met with the City Manager in order to see if
           there was any way that the Library could increase Mr. Chene-
           vert's salary to $30,000 in order to reward him for the out-
           standing job he has done.  Mr. Wilson [City Manager] made it
           very clear that this would not be politically feasible and his
           recommendation would be to put Mr. Chenevert on the newly
           adopted Pay Plan and make it retroactive to January 1, 1979."
The City Manager's recommendation was adopted.
     (d)  Library employees are part of the same group health insurance plan as
City employees, although the Library is billed by the City for its share.
     (e)  Library employees are part of the same group life insurance plan as City
employees.  The individual must pay for this.  The payment is easily accomplished
by an automatic payroll deduction, however, since the City actually writes the
Library employee's pay check.
     (12)  Notably, there is no evidence in the record of an attempt by the City
to exercise control over a managerial or personnel function which was actually
rebuffed by the Library.
4.  The Budget Process.
     (13) The Library is treated just like a City department in the budgetary

process. For example, the Library is denominated as a department on all City
forms that are utilized.  Also, the Library goes through the same process as all
the City departments, and is subject to the same control and influence of the
City Manager and City Council.  That process starts with an extremely detailed,
line-by-line budget request (for a six-month period) and includes exhaustive
reviews by the City Manager and City Council, both of which include public hear-
     (14)  The 1981 (first half) Portland Public Library budget request is 27
pages long.  It itemizes planned expenses according to a specific code format and
includes such things as the details of employee salaries by job classification
and expenditures, from light bulbs to the purchase of new books necessary to keep
the Library's collection current.  The City departments provide the same degree
of detail on these City-printed forms.
     (15)  The budget is initially prepared by the Director in conjunction with
the Finance Committee of the Board of Trustees.  It is then approved by the full
Board of Trustees and submitted to the City Manaqer.  The City Manager meets with
the Director and the Trustees and reviews the Library budget request.  He then
makes his own proposal for the Library in his total City budget which he submits to
the City Council Finance Committee.
     (16)  The City Finance Committee also meets with the Trustees, ask questions,
and reviews the budget request.  In the Library's latest budget review, for ex-
ample, the City Finance Committee asked the Library to indicate how it would reduce
its budget if the total were cut by $100,000.  When the budget is finally approved,
it is submitted to the full City Council for vote at a public hearing.
     (17)  Director Chevevert stated that the Library could, in theory, just ask
the City for a total allocation without following the line item, budget review
process.  He does not do this and never has.  Rather, he tries to give as much
detail as possible because it is "better for them to see where their money goes."
     (18)  One final item of note is the filing of a grant request with the U.S.
government for monetary support in the building of the new library.  The grant
required the filing of an "EEO-4" form (see footnote 12) for each of the City
functions.  The City Manager listed "Library" as one of the functions performed
by the City rather than as one not performed by the City.

I.  The Issue and Contentions.
     The issue can be simply stated:  Is the Portland Public Library a public
employer as defined by 26 M.R.S.A.  962(7) (Supp. 1980)?[fn]7  If so, then it and its
employees are subject to the benefits and burdens of the Municipal Public Employees

7.  " 'Public employer' means any officer, board, comission, council, committee
    or other persons or body acting on behalf of any municipality or town or any
    subdivision thereof, or of any school, water, sewer or other district, or of
    the Maine Turnpike Authority."  26 M.R.S.A.  962(7).
Labor Relations Law, 26 M.R.S.A.  961 et seq.  If not, then the employment
relationship would be unregulated.[fn]8  Specifically, if there is jurisdiction,
the Executive Director of the Board would proceed to determine an appropriate unit
for collective bargaining and conduct a bargaining agent election pursuant to
Section 966 and 967 of the Act.
     The Library contends that it does not qualify as a public employer under the
tests articulated in the three cases decided in Maine, Baker Bus v. Keith, 
416 A.2d 727 (Me. 1980) Erskine Academy Teachers Association v. Erskine Academy Board
of Trustees, MLRB No. 79-06 (March 27, 1979), and Teamsters Local 48 and Auburn
Public Library, Unit Determination (Oct. 18, 1978) [No. 79-UD-03], or under a similar New York
case, New York Public Library v. New York State, 357 N.Y.S.2d 522 (Sup. Ct., App.
Div. 1974), aff'd, 374 N.Y.S.2d 625 (Ct. App. 1975).  While the Library concedes
that it relies on the City's direct and indirect financial contributions, it con-
tends that the Library retains total responsibility for the management and control
of its business affairs and employee relations.  It posits that the City has no
right of control over the Library.
     The Union contends that the City does in fact control and influence Library
operations (1) through the budget process, (2) by paying directly for many Library
needs and functions, (3) by treating the Library as a department, and (4) by
dominating its finances, operations, and labor relations.  It argues that there is
enough effective control by the City to warrant and justify the inclusion under
the Act of the Library and its employees.
     I conclude that there are sufficient elements of control present such that
the Library is the City's "servant" and that the Library is a body acting on
behalf of a municipality, the City of Portland.  Therefore, it is a public employer.
II.  The Test of Public Employer Status.
     The test that must be applied here is that set forth by the Law Court in the
Baker Bus case.  In that case it affirmed, with slight modification, the test
developed by the Board in the decision under review, Baker Bus Service and Teamsters
Local No. 48, MLRB Appellate Review of Unit Determination (Oct. 6, 1978) 
[No. 78-A-05]. The
question is whether the entity, in providing a service to a city, acts as an agent-
servant subject to the City's control or right to control.  See, Baker Bus, supra,
416 A.2d at 737.
     The Board's Erskine Academy case, although decided before the Law Court's
8.  The National Labor Relations Board (N.L.R.B.) would not likely assert juris-
    diction over the Library because it has an "intimate connection" with a
    governmental entity (the City) exempt from coverage under 29 U.S.C.  152(2).
    E.g., Rural Fire Protection Co., 216 NLRB 584 (1975) (declining jurisdiction
    over company which provided basic firefighting protection, under contract,
    to a city). But see, National Transportation Service, Inc., 240 NLRB No. 64
    (1979) (asserting jurisdiction over a company which provided busing services
    to a school district).  (3-2 decision).  In Nassau Library System, 196 NLRB
    864 (1972), the N.L.R.B. decided it would not "effectuate the purposes" of
    the NLRA to assert jurisdiction over a library system which was chartered
    pursuant to state law, received state and county financial assistance, and
    performed a public service in close coordination with governmental functions.

decision in Baker Bus, is helpful because it in essence applied the approved
agency test.  The decision of the hearing examiner in the Auburn Public Library
case, however, is of no precedential value because it suggests two standards
which are inconsistent with the Board's approved test.  See, Baker Bus Service
v. Keith, 416 A.2d 727 (Me. 1980).
     The holding in New York Public Library v. New York State, 357 N.Y.S.2d
522 (Sup. Ct., App. Div. 1974), affirmed, 374 N.Y.S.2d 625 (Ct. App. 1975)
(memorandum), is also inapposite.  In deciding that the New York Public Library
was not a public employer, the New York courts construed New York's Taylor
Law, Civil Service Law  201, subd. 6(9), which is substantially narrower than
the Maine Act.  See, Baker Bus, supra, 416 A.2d at 730.  The broadest language
in the Taylor Act is "(vi) any other public corporation, agency or instrumental-
ity or unit of government which exercises governmental powers under the laws of
the state."  Id.  This statute would exclude an entity such as Baker Bus on at
least two grounds:  (1) it is a private corporation and not a public corporation
or other listed entity, and (2) it does not exercise governmental power, for
example, "the power to tax, to enact general legislation which is judicially
enforceable, to take by eminent domain, and to exercise police powers," Id. at 533.

III.  Analysis.
     The key issue is control , not the terms of art "agency" or "servant-agent"
as such.  Rather, these concepts are used as guides by the Board in analyzing the
relationship; they are not hard and fast or binding for other purposes outside
the Act.  But somewhere along the spectrum of degrees of control, a functioning
entity crosses a line between (1) being sufficiently controlled by a municipality
or other public employer to be considered to fall within the purpose of the Act,
and (2) being sufficiently independent of a municipality, for which it may perform
a service or otherwise act for, to be outside the ambit of the Act.  While the
ultimate conclusion must be a systemic one, it is helpful to utilize the factors
or elements that have already been identified in making the determination.
     A number of categories of control elements were identified in Baker Bus.
The first three received special emphasis, 416 A.2d at 731:  (1) the relative size
of the capital investment involved (also emphasized in Erskine Academy) (2) who
furnished the equipment, supplies or materials necessary to operate the service;
and (3) the situs of power over major operational functions of the service.[fn]10

 9.  In Teamsters Local No. 48 and Auburn Public Library, Unit Determination
     (Oct. 18, 1978) [No. 79-UD-03], the hearing examiner suggested that a library, to be a
     public employer under the Act, (1) must be an official organ or branch of
     municipal government (sl. op. at 7) or (2) that it is the control over
     the employment relationship that is the acid test of coverage under the
     Act. (sl. op. at 8).  Baker Bus Service, held to be a public employer
     by the Board and the Law Court, would not qualify under either of these
10.  Although the Board specifically rejected this factor in its analysis in the
     Baker Bus case, see, Teamsters Local No. 48 and Baker Bus Service, MLRB
     Report of Appellate Review of Unit Determination (Oct. 6, 1978) (sl. op. at
     7) [No. 78-A-05], the Law Court emphatically relied on it, see, Baker Bus Service v. Keith,
     416 A.2d 727, 731 (Me. 1980).

Others were also noted:  (4) the public identification of the entity as a public
employer;[fn]11 (5) the responsibility for maintaining, replacing and insuring the
capital assets; (6) the provision for liability insurance; (7) responsibility for
compliance with governmental regulations; (8) the type and degree of other sup-
port provided; and (9) control over labor relations matters.  Other factors sug-
gest themselves from logic and legal formulations of the servant-independent con-
tractor dichotomy:  (10) the length of the relationship; (11) how the parties
themselves view their relationship; and (12) other indicia of public employment
     Every listed category indicates that an element of City control is present
in this case.  Moreover, despite the fact that a major city library system is a
more complex and sophisticated operation than a school bus service, there is more
control by the City of Portland over its library than by the City of Augusta over
its school bus service.  (1)  Like Baker Bus and unlike Erskine Academy, the Library
Trustees have a relatively minimal capital investment compared to the massive
investment in the buildings and the other funds provided by the City over the last
one hundred and thirteen years.  (2)  Even the equipment, book collection, and
daily materials used by the Library are traceable in substantial part to the City.
     (3)  Major operational functions are also controlled by the City, much like
the bus routes in Baker Bus.  Although the right of control is not specifically
reserved by contract, it is actually retained in fact through the power of the
purse and its close budget review.  Clear examples of this are evident in the
Library's treatment of the fact that it is closed on Mondays.  If the City wanted
the Library open on that day it could simply provide an extra $18,000.  The City
has the same control over the size of the staff.  This is evident from the fact
that the Library specifically "requests" an increase in staff by four in its bud-
get request.  The City also controls the size of the book collection by how much
it allocates for this expenditure.  Other less obvious possibilities of control
are evident from a review of the budget itself.  The written evidence of such
control, evident in some of the minutes and in the Report of the Librarian, makes
it likely that there are more examples that did not reach written form.  A final
example of control is the City's role in the selection of the site for the new
library building.
     (4) Public identification of the agent as part of the municipality is also
evident here, as in Baker Bus where the buses were marked "City of Augusta School
Department."  The name of the Library, "Portland Public Library" connotes that
this is a public service of the City of Portland.
     (5) The City does some maintenance work for the Library, and pays for the
rest indirectly.  Notably, it also insures (a) both the City buildings used by
the Library, (b) the contents of the buildings, and (c) the Bookmobile.  (6)  The
City, like in Baker Bus, also carries liability insurance on the Library employees.

11.  For example, the buses operated by Baker Bus Service were marked "City of
     Augusta School Department."  Baker Bus Service v. Keith, 416 A.2d 727, 731
     (Me. 1980).


In addition, it provides Workers Compensation for these employees.

     (7)  There is little evidence of the need by the Library to comply with
governmental regulations.  It is notable, however, that when the City applied
to the U.S. government for a partial grant to build the new library building,
it was required to submit an "EEO-4"[fn]12 form for all City functions.  The
compliance with equal opportunity laws can be initially judged from this form.
By listing "Library" as one of the functions performed rather than one not per-
formed by the City, it appears to take primary responsibility for compliance, at
least for the purposes of employment decisions.
     (8)  There is an extensive list of other support that the City provides to
the Library: Maine State Retirement System payments; unemployment insurance;
office supplies, gas and oil; Workers Compensation coverage; snow removal;
printing services; and payroll computer services.  It is not suggested by the
evidence that the Library has any realistic alternatives to these examples of
     (9)  Significantly, the City exercises extensive de facto control over
labor relations at the Library, in contrast to the near total freedom exercised
by the bus company in Baker Bus.  Not only does the Library have written and
unwritten policies of matching the City wage and Benefit plans, there is evidence
that the City requires this.  (See Findings (11)(a) and (b)).  For example, the
Library's wage increase to its employees follows the City's plan.  Also, when
the Trustees wanted to increase the Director's salary, they asked the City Manager's
approval.  He refused.  The Trustees followed his alternative suggestion.
    (10)  The relationship between the City and the Library is lengthy and,
because of the confluence of factors, some of which are political, it is not
likely that the Library can strike a course independent of the City's control.
The Library's history shows this.  The legislative act which created the Library
corporation contains the basic terms of the relationship:  as long as the City
pays for the Library and provides the location, the Library will provide free
access for City residents.  (Findings para. (1)).  A subsequent act eliminated
these contingencies in the relationship by simply declaring that the authorized
purpose of the library corporation is to provide a free library for City residents.
In essence, it is charged by law with performing this governmental function on
behalf of the City of Portland.  The City must pay for this service; it always has.
    (11)  The Library sees itself as a servant of the City.  Although this con-
clusion was denied at the hearing, the evidence dictates the result.  First, the
Library acts like, and is treated like, a City department.  Second, even the
Library's own minutes contain evidence of this self perception.  For example, in
the 1950 minutes (Findings 8(b)) there are two references to the Library employees
as City employees.  Third, the City sees itself as the master of the Library.
For example, in its EEO-4 form submission to the U.S. government, it take responsi-
bility for the Library.  Other examples abound.
12.  The full title is "Equal Employment Opportunity Commission, State and
     Local Government information (EEO-4)."  The form provides a detailed
     breakdown by category of employee of the number of each race and sex

     (12) Although less significant, there are other indices of public
character present here:  participation in M.S.R.S., which is essentially re-
served for instrumentalities of the State and its political subdivisions;
and the Library's federal and state tax exempt status.
     In conclusion, the elements of control itemized above are more weighty
and extensive than those present in Baker Bus, and are more than sufficient to
support the conclusion that the Library is a servant-agent and alter ego of the
IV.  Joint employer considerations.
     This decision determines only that the Library itself, as represented by
the Trustees and the Director, is a public employer.  It does not reach the
question, not posed by the parties, whether the City is also a public employer
of these employees, that is, a joint employer.  That possibility, however,
is definitely suggested by the fact that the City has fairly extensive control
over, and involvement in, the Library's labor relations.  This has not been the
case in "public employer" cases previously decided.
     This is a concern because joint employer status has serious legal ramifi-
cations.  The Board addressed this specific problem in Lewiston Police Depart-
ment, IBPO Local 545 v. City of Lewiston, MLRB No. 79-64 (Dec. 18, 1979).  Thus,
if a union were to become the legal bargaining agent for Library employees, both
the Library and the City could be in danger of violating the duty to bargain,
26 M.R.S.A.  965(1), if the City's actual conduct with respect to mandatory sub-
jects of bargaining is inconsistent with its status as either a joint public
employer of these employees or not.  In other words, if this question is not re-
solved by the parties in advance, it may have to be resolved by the Board in the
context of a prohibited practice complaint.
V. Conclusion.
     For the reasons indicated in the Analysis section, it is determined that the
Portland Public Library is a public employer within the meaning of Section 962(7)
of the Act.  The Executive Director or his designee, therefore, has jurisdiction
under Section 966 to make an appropriate unit determination.
Dated at Augusta, Maine, this 25th day of November 1980.
                                              Michael C. Ryan
                                              Hearing Examiner
The parties are advised of their right pursuant to 26 M.R.S.A.  968(4) to appeal
to the Maine Labor Relations Board within 15 days after receipt of this determina-

13.  While the "right of control" stemming from a contract was involved in 
     Baker Bus 416 A.2d at 731, actual control is present here.  The confluence of
     legislative act, political structure, and financial realities have resulted
     in a course of conduct that demonstrates an implied agreement that the Library
     will act on behalf of the City.

STATE OF MAINE                                       MAINE LABOR RELATIONS BOARD
                                                     [Case No. 81-UD-04]
                                                     [Issued:  September 22, 1981]

   and                        )                   UNIT DETERMINATION REPORT
     This is a unit determination proceeding, initiated on July 15, 1980 when the
Portland Teachers Association (Association) filed a petition for unit determination
pursuant to 26 M.R.S.A.  966(1).  The Portland Public Library (Library) objected
to the filing of the petition on the ground that it was not a "public employer"
subject to the provisions of the Municipal Public Employees Labor Relations Act,
26 M.R.S.A.  961, et seq.  Hearings were held on the jurisdictional issue, and on
June 18, 1981 the Maine Labor Relations Board issued a decision in Case No. 81-A-02
affirming a hearing examiner's report which found that the Library is a "public
employer" subject to the jurisdiction of the Labor Relations Board.  The Library
has appealed this decision to the Cumberland County Superior Court.
     On September 22, 1981, a hearing was held in Augusta, Maine on the merits of
the petition for unit determination.  The Association was represented by John C.
Alfano and the Library by F. Paul Frinsko, Esq.  The Library objected to the hear-
ing on the ground that its appeal of the jurisdictional ruling was still pending,
and noted for the record that by participating in the hearing it was not waiving its
right to contest the jurisdictional ruling in Superior Court.
     The Association seeks by its petition formation of a bargaining unit composed
of various Library job classifications.  The Library proposed at the hearing that
two bargaining units be formed, one composed of the Library's professional employees
and the other composed of technical, clerical and maintenance employees.  After con-
sidering this proposal, the Association agreed that two bargaining units of Library
employees would be appropriate.
     Having examined the job descriptions of the employees proposed to be included
in the two bargaining units, the hearing examiner concludes pursuant to 26 M.R.S.A.
 966 that the two proposed bargaining units are appropriate for purposes of col-
lective bargaining. The description of the professionals bargaining unit is:

          All public employees in the Librarian I, Librarian II or
          Librarian III job classifications at the Portland Public
The description of the technical, clerical, and maintenance bargaining unit is:
          All public employees in the Library Associate, Senior Library
          Technical Assistant, Library Technical Assistant, Senior Office
          Assistant, Office Assistant, Senior Fiscal Clerk, Library Clerk,
          Senior Custodian, or Custodian job classifications at the Port-
          land Public Library:
     All other job classifications at the Library are excluded from bargaining
units at the present time.  The Library by participating in this hearing has not
waived its right to contest this Board's jurisdictional ruling.
Dated at Augusta, Maine this 22nd day of September, 1981.
                                         MAINE LABOR RELATIONS BOARD
                                         Wayne W. Whitney, Jr.
                                         Hearing Examiner


                                    LIBRARIAN I
     Nature of work:  This is professional library work in one or
     more specialized fields of public library service.
     Employees perform duties involving the general application
     of professional library techniques and procedures.  Fields
     of assignment include cataloging and classification, general
     and technical reference, readers' advisory service, children's
     library services, and general duties in the main library or in
     a branch library.  The work is performed under the direction of
     an administrative superior, who exercises general supervision
     and assists with difficult or unusual problems; all work is
     performed according to established policies and procedures.
     Supervision may be exercised over a small staff of clerical and
     sub-professional employees.
     Illustrative examples of work:
          Performs readers' advisory work, assisting patrons in the
     use of library facilities; advises parents in selection of
     reading material for children.
          Performs professional technical services in cataloging,
     classification, indexing, subject heading, and documentation.
          Prepares general book lists and bibliographies, does general
     reference work; processes government documents; maintains pamphlet
     and clipping files.
          Supervises specialized reading rooms and service facilities,
     such as talking books.
          Performs related work as required.
     Knowledges, abilities and skills:  Knowledge of modern library
     principles, methods, and practices.
          Knowledge of reader interest levels and of books and authors.
          Knowledge of library reference materials, aids, and procedures.
          Ability to supervise the work of a small group of clerical
          Ability to establish and maintain effective working re-
     lationships with library patrons and with other employees.

     Desirable experience and training:  Graduation from an accredited
     college or university with a Master's Degree from an accredited
     graduate library school or equivalent professional training or
     experience.  Desirable courses are:  Reference, Book Selection, the
     Library in the Social Order, and Cataloging.

                                    LIBRARIAN II
Nature of work:  This is professional work requiring experience and special
training in library science.  An employee of this class is responsible for
professional duties involving administrative or supervisory responsibilities,
or in-depth subject specialization.  Modern library techniques must be
applied normally without direct supervision although work is subject to
review by an administrative superior who is consulted on difficult problems.

Illustrative examples of work.

     Acts as a principal assistant in a large department and/or contributing
in-depth subject specialization.

     Trains personnel in library routines; catalogs books; answers reference
questions; assists in the selection of materials for the library or one or
more of its special collections.
     Performs varied reference work including research on difficult technical
questions; prepares book lists and bibliographies; handles correspondence of
research questions done by mail; classifies and assigns subject heading for
pamphlets for various sections of the library.
     Assist supervising librarians in division management; prepared work
schedules, and gives departmental orientation and training to new clerical
and professional employees.
      Performs related work as required.
Knowledges, abilities and skills:  Considerable knowledge of modern library
purposes, professional policies, methods and techniques.

     Considerable knowledge of reference, cataloging, and circulation pro-
cedures, materials, aids and skill in their application.
     Knowledge of reader interest levels and in-depth knowledge of books
and authors.
     Ability to perform specialized research on historical, technical or
other questions.
     Ability to establish and maintain good work relationships with
community groups, the public, and with other employees.
     Ability to analyze professional and administrative problems and
assist in their solution.
Desirable experience and training:  Graduation from an accredited college
or university and attainment of a graduate degree from an accredited school
of library science or a Masters Degree in another field of specialization
required by the library.  Experience in professional library work including
some experience in a progressively responsible supervisory position.
                                   LIBRARIAN III

     Nature of work:  This is professional library work in administration
     of a major function of the library system.  The work is performed
     under general supervision, and considerable latitude for initiative
     and independent judgment is present.  Supervision may be exercised
     over a staff of professional, sub-professional, and clerical
     Illustrative examples of work:  Manages a major department or one
     of the branches of the library system.
          Trains and directs professional and clerical staff.
          Develops, installs and supervises procedures to assist the
     division in more effectively performing its work.
          Provides consultant services to organizations and general
          Plans and participates in special activities designed to inform
     the public on library facilities or to expand the scope of services
     being offered.
          Attends staff meetings and workshops.
     Knowledges, abilities and skills:  considerable knowledge of modern
     library principles, methods, and practices.
          Considerable knowledge of the acquisition and organization of
     library materials.
          Considerable knowledge of patron interest levels and a wide
     knowledge of a variety of books, and other library materials, print
     and non-print.
          Considerable knowledge of the techniques of library service,
     services to individuals and to groups, and library program planning.
          Ability to establish and maintain good work relationships with
     community groups, the public, and to provide constructive leadership
     and supervision of a staff of employees.
          Ability to analyze problems and determine most appropriate
          Ability to set goals, plan for achieving the goals, and secure
     cooperation of others in attaining them.
     Desirable experience and training:  Graduation from an accredited
     college or university with a Masters in Library Science; and at least
     three years of successful employment in a professional capacity,
     including some supervisory experience.