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
     and               )               REPORT OF APPELLATE REVIEW OF
                       )                    UNIT DETERMINATION
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.
     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).

                                FINDINGS OF FACT
     Upon review of the entire record, the Board makes the following findings of
     1.  That the Town of Sabattus is a public employer as defined in 26 M.R.S.A.
     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.
     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

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
     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

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.
     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
          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