Town of Sabattus and Teamsters Local 48, No. 82-A-01, affirming No. 82-UD-02 STATE OF MAINE MAINE LABOR RELATIONS BOARD Case No. 82-A-01 Issued: September 17, 1981 _______________________ ) TOWN OF SABATTUS ) ) and ) REPORT OF APPELLATE REVIEW OF ) UNIT DETERMINATION TEAMSTERS LOCAL UNION ) NO. 48 ) _______________________) This is an appeal by the Town of Sabattus (Town) of a unit determination report issued pursuant to 26 M.R.S.A. 966(1) on July 27, 1981 by a Maine Labor Relations Board (Board) hearing examiner. Having determined that the Town is a public employer as defined in 26 M.R.S.A. 962(7), the hearing examiner concluded that a bargain- ing unit composed of the Patrol Sergeants and Patrolmen employed by the Town, in its Police Department is appropriate for purposes of collective bargaining. The Town contends on appeal that the hearing examiner erred as a matter of law in reaching this conclusion. A hearing on the Town's appeal was held on August 26, 1981, Alternate Chairman Donald W. Webber presiding, with Employer Representative Don R. Ziegenbein and Alternate Employee Representative Harold S. Noddin. The Town was represented by Frederick H. Greene, III, Esq. and Teamsters Local Union No. 48 (Union), the party which initiated this proceeding by filing petitions for an appropriate bargaining unit determination and an election, by its Secretary-Treasurer Walter J. Stilphen, Jr. Both parties having declined the opportunity to present evidence, either directly or through cross-examination, and the right to make argument thereat; a post-hearing briefing schedule was established. The Town filed a post-hearing brief, which was duly considered by the Board, and the Union elected, by letter to the Board, to stand on the record of the proceeding before the hearing examiner. JURISDICTION The Town is an aggrieved party within the meaning of 26 M.R.S.A. 968(4). The Union is a public employee labor organization. The jurisdiction of the Maine Labor Relations Board to hear this appeal and render a decision and order herein lies in 26 M.R.S.A. 968(4). [-1-] ____________________________________________________________________________________ FINDINGS OF FACT Upon review of the entire record, the Board makes the following findings of fact: 1. That the Town of Sabattus is a public employer as defined in 26 M.R.S.A. 962(7). 2. That Teamsters Local Union No. 48 is a public employee organization within the context of 26 M.R.S.A. 962(2). 3. That the Patrol Sergeant is not permanently involved in collective bargain- ing matters or in formulating and effectuating the Town's labor relations policies. 4. That the Patrol Sergeant does not have the authority to hire or fire employees or to set Department schedules. DECISION The standard of review used in this type of appellate proceeding is whether the hearing examiner's determination is unlawful, unreasonable, or lacking in any rational factual basis and, therefore, should be reversed. Town of Yarmouth and Teamsters Local 48, M.L.R.B. Case No. 80-A-04, at p. 5 (6/16/80). The hearing examiner's duty is "to determine whether the unit proposed by the petitioner is an appropriate one, not whether the proposed unit is the most appropriate unit." Ibid., at p. 4. The instant proceeding is not a de novo hearing over the merits. New evidence not offered to the hearing examiner is inadmissable for appellate review by the Board. Teamsters Local 48 and City of Portland, Report of Appellate Review of Unit Determination, at pp. 4-5 (2/20/79) [78-A-10]. We will not consider the written job des- cription for the positions of Sergeant and Patrolman, since said exhibits were not produced at the hearing below. The Town alleges that the hearing examiner erred, as a matter of law, in his determination to include the position of Patrol Sergeant in the proposed bargaining unit. The Town's premise is that the Sergeant is a "confidential employee" and, therefore, said position is excluded from the definition of "public employees" through 26 M.R.S.A. 962(6)(C). The test controlling said determination was set forth in Waterville Police Department and Teamsters Local Union No. 48, Report of -2- ____________________________________________________________________________________ Appellate Review of Unit Determination (10/4/78) [78-A-06]. In Waterville we stated: "[T]he test for determining whether an employee is a 'confi- dential employee' is whether the employee is 'permanently assigned to collective bargaining functions, employee relations matters or renders advice on a regularly assigned basis to management person- nel regarding either collective bargaining or employee relations matters.' To show that an employee's duties imply a confidential relationship under Section 962(6)(C), then, it is necessary to show that the employee is permanently involved in collective bargaining matters on behalf of the public employer or that the duties per- formed by the employee involve the formulation, determination and effectuation of the employer's employee relations policies, [cita- tions omitted]." Waterville, supra, at p. 3. The evidence received at the hearing below demonstrated that the Sergeant was not permanently involved in collective bargaining matters or in the formulation, effectuation, or administration of the Town's labor relations policies. The hearing examiner, therefore, correctly applied the above test and his determination that the Sergeant is a public employee, as defined in 26 M.R.S.A. 962(6), is affirmed. The Town further argues that the position of Sergeant should be excluded from the proposed bargaining unit because the Sergeant is a supervisor and lacks a suf- ficient community of interest with the other unit employee(s). This issue was not presented to the hearing examiner, for his determination thereof, and, pursuant to the rule which we laid down in City of Bath and Council 74, AFSCME, M.L.R.B. Case No. 81-A-01, at p. 6 (12/15/80), we need not rule on said issues, raised for the first time during the appeal to this Board. The tripartite test for determining whether supervisory employees should be excluded from the proposed bargaining unit is set forth in 26 M.R.S.A. 966(1). Since said issue was not raised before the hearing examiner, very little evidence relative thereto was included in the Unit Determination Report. The relevant evidence, which does appear in said report and which is cited in paragraphs 3 and 4 of our above findings of fact, would lead us to the conclusion that the Sergeant does share a sufficient community of interest with the other employees to be properly included in the proposed unit. Section 966 (1) is permissive in nature; allowing the hearing examiner to either include super- visory personnel in the proposed unit or to place them into a separate bargaining unit. The meager relevant evidence now before us, to which the Town by its failure to attend the hearing below is bound, suggests that the hearing examiner's determ- ination of an appropriate bargaining unit is correct. To hold otherwise, would be contrary to our policy of discouraging the proliferation of small bargaining units -3- ____________________________________________________________________________________ within a single department. Town of Yarmouth and Teamsters Local Union No. 48, M.L.R.B. Case No. 80-A-04, at p. 4 (6/16/80). Furthermore, to exclude the Ser- geant from the proposed unit would result in a single-member unit and may well impede said individual from securing the free exercise of his collective bargain- ing rights, contrary to the spirit and intent of Section 963 of Title 26 M.R.S.A. ORDER On the basis of the foregoing findings of fact and decision and by virtue of and pursuant to the powers granted to the Maine Labor Relations Board by 26 M.R.S.A. 968(4), it is ORDERED: 1. The July 27, 1981 unit determination report in this matter is affirmed. The position of Patrol Sergeant is properly included in the proposed bargaining unit along with that of patrolman. 2. The Town of Sabattus' appeal is denied. 3. This proceeding is remanded to the Executive Director with the instruction that he or his designee conduct a representation election therefor as soon as practicable. Dated at Augusta, Maine this 17th day of September, 1981. MAINE LABOR RELATIONS BOARD The parties are advised of their right pursuant to 26 M.R.S.A. 968(4) to /s/________________________________________________ seek a review by the Donald W. Webber, Alternate Chairman Superior Court of this decision by filing a com- plaint in accordance /s/________________________________________________ with Rule 80B of the Don R. Ziegenbein, Employer Representative Rules of Civil Procedure within 15 days after receipt of this decision. /s/________________________________________________ Harold S. Noddin, Alternate Employee Representative -4- ____________________________________________________________________________________